Coronation Towers [2006] QBCCMCmr 229 (5 May 2006)

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

Pursuant to the application by the Body Corporate for Coronation Towers (body corporate):

1. I hereby order that within one month the owner of lot 1 must ensure that the trees in her exclusive use courtyard are trimmed and maintained so that:

(a) they do not interfere with the view of the Brisbane River from the window of any other lot in Coronation Towers; and

(b) they are at no time higher than the bottom of the windows of lots in Coronation Towers above lot 1;

2. I hereby further declare that the owner of lot 1 has an ongoing responsibility to trim and maintain the trees in her exclusive use courtyard so that:

(a) they do not interfere with the view of the Brisbane River from the window of any other lot in Coronation Towers; and

(b) they are at no time higher than the bottom of the windows of lots in Coronation Towers above lot 1;

3. I hereby further declare that if the trees in the exclusive use courtyard attaching to lot 1:

(a) interfere with the view of the Brisbane River from the window of any other lot in Coronation Towers; or

(b) are higher than the bottom of the window of any lot in Coronation Towers above lot 1,

then the body corporate may, after delivering to the owner of lot 1 a valid Notice of Intended Entry and the lapse of the period stated therein, authorise an arborist or other qualified person to enter the courtyard solely to trim the trees to an extent reasonably necessary for them not to interfere with the view of the Brisbane River from the window of any other lot in Coronation Towers, and are not higher than the bottom of the window of any lot in Coronation Towers above lot 1. The body corporate must remove any trimmings fallen on lot 1 or its courtyard;

4. I hereby further declare that the body corporate may recover the reasonable costs associated with trimming the trees pursuant to the above declaration from the owner of lot 1 after 14 days from delivering to her two quotes for the work, of which she will be responsible for the lower quote. Should the owner of lot 1 fail to pay those costs, then the body corporate may recover them from her as a debt; and

5. I hereby further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0813-2005

"Coronation Towers" CTS 10948

Application

Coronation Towers Community Titles Scheme (Coronation Towers) is a 79 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.

This is an application by the the body corporate of Coronation Towers (applicant) seeking orders against Hertha Lechner, the owner of lot 1 (respondent). The orders sought are:

Facts

The facts affecting this decision are not in dispute.

By-law 5.3(a) for the scheme states:

Schedule E to the by-laws for the scheme provides that lot 1 on BUP 4236 (the respondent’s lot) has Area A on Sketch "1" as an Exclusive Area. This area is a courtyard.

On 23 March 2005, the committee of the body corporate approved a request from the owner of lot 1 for her to undertake improvements within the courtyard. In giving its permission, the committee asked the owner of lot 1 to trim a tree within the courtyard down to the level of the rooftop of the next building, as it was "blocking the view of other residents". The committee also asked the owner of lot 1 to remove ten Cocos Palms.

On 30 March 2005, the owner of lot 1 wrote to the committee refusing to have the tree lopped without a professional opinion, citing by-law 5.3.
On 28 April 2005, the committee obtained a report from an arborist whom it regularly uses, Mr John Mulholland. The recommendations of that report were:

On 20 May 2005, the body corporate wrote to the owner of lot 1, saying that it believed that she had seen a copy of Mr Mulholland’s report, and requesting that she trim the trees in the courtyard down to the level of the balcony above her courtyard, or removed altogether, within 28 days.

On 6 June 2005, the owner of lot 1 wrote to the body corporate stating that she would trim some of the trees in her courtyard.

On 20 June 2005, the body corporate sent to the owner of lot 1 a further report from Mr Mulholland that it had obtained, insisting that the by-laws relating to all the trees in the courtyard be complied with. This further report confirmed the findings of Mr Mulholland’s previous report.

On 26 June 2005, the owner of lot 1 wrote to the body corporate offering to crop back to the roof level of the neighbour’s house, in accordance with the committee’s original decision of 13 September 2004.

On 14 July 2005, the body corporate wrote to the owner of lot 1 asking that the trees be lopped to, and maintained at, the level of the sunhood, as recommended by the arborist, Mr Mulholland.

On 26 July 2005, the body corporate wrote to the owner of lot 1 requesting that the trees be cut back to the height of the sunhoods, by 31 July 2005.

On 15 August 2005, the body corporate wrote to the owner of lot 1 stating that the committee had decided that it would be easier to "remove the palm trees now rather than wait until they are much larger when it will be much more expensive to remove them." The body corporate also sought the removal of "smaller palms growing alongside the existing palms". The body corporate noted that the owner of lot 1 had trimmed some branches of these palm trees so that they did not impinge upon her view.

On 16 August 2005, the body corporate wrote to the owner of lot 1 rejecting her offer to crop back to the roof level of the neighbour’s house and reiterated that the trees were to be trimmed back to sunhood height. This was on the basis that the owner of lot 1 had rejected the committee’s original decision by requesting an arborist’s report, and now had to comply with the recommendations of that report.

On 23 August 2005, the body corporate wrote to the owner of lot 1 again seeking her compliance with the by-laws by trimming the trees in her courtyard.

On 30 August 2005, the body corporate wrote to the owner of lot 1 requiring that the six larger palm trees on the common property adjacent to the courtyard be removed within 14 days, while the smaller palms were to remain. The body corporate warned the owner of lot 1 that if the work was not carried out, then the body corporate would endeavour to carry out the work, for which the owner of lot 1 would be billed. The body corporate added that any work undertaken must include the trimming of the larger tree to sunhood height.

On 8 September 2005, the body corporate wrote to the owner of lot 1 advising her that the lopping of the trees in her courtyard to sunhood level must be completed by 13 September 2005. The body corporate added that should the work not be carried out, the body corporate would organise the work and send the bill to the owner of lot 1. The body corporate told the owner of lot 1 that the contractor was to be provided with access to her courtyard via the garden gate.

On 9 September 2005, the owner of lot 1 wrote to the body corporate advising that she would be absent from 13 September 2005 to 20 September 2005, and that her garden gate would be closed during her absence.

On 15 September 2005, the body corporate gave written notice to the owner of lot 1 that a contractor would be entering her courtyard on "Friday September 2005 at 7.30am", to carry out the required work in accordance with section 121(2) of the Standard Module. This notice was purported to be given in accordance with by-law 5(3)(a) and section 163 of the Act. The notice omitted the date when the contractor would enter, but referred to the body corporate manager meeting with the respondent on Thursday 29 September 2005 to "go over the legislative and administrative requirements of the committee’s decision".

On the same day, the solicitors for the owner of lot 1 wrote to the body corporate, disputing that the body corporate may lop off the trees in the courtyard attaching to lot 1 to sunhood level, at the cost of the owner of lot 1. The solicitors for the owner of lot 1 advised the body corporate that the owner of lot 1 did not permit entrance into the courtyard or any damage to the trees.

On 20 September 2005, the body corporate wrote to the solicitors for the owner of lot 1 advising that by-laws 5(3)(a), 14(2), 15(1), 16(a) and (b), and 24 "are relevant and in our opinion have been contravened". The body corporate foreshadowed issuing a continuing contravention notice to the respondent under section 182 of the Act.

On 27 September 2005, the solicitors for the owner of lot 1 wrote to the body corporate requesting a copy of the Community Management Statement, and any relevant rule relating to the body corporate.

On the same day, the owner of lot 1 was served with a Notice Of Continuing Contravention Of A Body Corporate By-Law (Contravention Notice) . This Notice alleged that the owner of lot 1 breached by-laws 5(3)(a), 14(2), 15(1), 16(a) and (b), and 24.

On 3 October 2005, the body corporate sent a copy of the Contravention Notice to the solicitors for the owner of lot 1.

On 8 November 2005, the body corporate applied to the Office of the Commissioner for Body Corporate and Community Management seeking relief in terms of the orders referred to above.

Submissions

In accordance with the Act, the Commissioner called for submissions and provided a copy of the application to the owner of lot 1, and to the body corporate manager for distribution to the owner of each lot (excluding the owner of lot 1). A number of submissions were received from lot owners, as well as the owner of lot 1. In support of its application, the body corporate provided grounds in its application on how it considered that the owner of lot 1 had contravened the by-laws. These were to the effect that:

Of the submissions from other lot owners, all seven supported the body corporate’s application. These submissions were to the effect that:

In reply, the solicitors for the owner of lot 1 made an extensive submission. This submission was to the effect that:

Jurisdiction

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

(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)).

Decision

Responsibility to maintain trees

Section 169 of the Act allows the body corporate for the scheme to make by-laws regulating the use and enjoyment of the common property. The by-laws form part of the community management statement for Coronation Towers. Under section 59 of the Act, the community management statement is binding on the body corporate, each member of the body corporate, and on each occupier of a lot in the scheme.

Section 170 of the Act relevantly provides that an exclusive use by-law is a by-law that attaches to a lot included in the scheme and gives the occupier of that lot for the time being exclusive use to the rights and enjoyment of, or other special rights about, common property or a body corporate asset.

The trees that are the subject of this dispute are within the courtyard attaching to lot 1. This courtyard is common property that has been allocated as an "exclusive use" area for the benefit of the owner of lot 1, pursuant to by-law 24 and Schedule E of the Community Management Statement. By-law 24 falls within the ambit of section 169(1)(b)(ii) of the Act, and to that extent has been validly created.

Section 109 of the Standard Module requires the body corporate to maintain common property in good condition. However, Section 123 of the Standard Module determines responsibility for maintenance of common property where exclusive use has been granted to individual lot owners. Section 123(2) of the Standard Module provides:

"An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom exclusive use or other rights are given responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies."

Therefore, the wording of the specific by-law granting exclusive use will determine who is responsible for maintaining the exclusive use area.

The specific by-law here is by-law 24. By-law 24 deals in part with the appearance and maintenance of each exclusive use courtyard area. It relevantly provides:

"The owners of courtyard areas...shall be responsible at the owner’s cost to, and shall at all times, keep the same in a neat and tidy condition and the grass (if any) thereon cut and edges trimmed and plants properly tendered (sic) and watered and otherwise the owner shall not be responsible for the performance of the duty of the body corporate under the Body Corporate and Community Management Act Standard Module Section 109(1)."

The effect of this part of by-law 24 is that the owner of a courtyard area must at the owner’s cost keep it in a neat and tidy condition at all times. The solicitors for the owner of lot 1 submitted that by-law 24 does not regulate the height of plants or require that trees be kept to sunhood height, but merely requires the owner of lot 1 to ensure that her exclusive use courtyard is kept properly, at her own cost. The phrase "neat and tidy" in by-law 24 carries similar connotations to the phrase "clean and tidy", the meaning of which was considered by Adjudicator Meek in Order No. 797 of 2005:

"To keep clean and tidy is distinct from and a lesser level of responsibility than maintenance. I consider that the obligation... is to be interpreted as a ‘specific provision in the by-law for maintenance and operating costs’. This means that the body corporate continues to be responsible for the more onerous responsibility of maintenance of common property as the by-law only makes the lot owners responsible for keeping common property in a clean and tidy condition."

Applying this here, this part of by-law 24 only requires the owner of lot 1 to keep her exclusive use courtyard neat and tidy, while the body corporate is responsible for general maintenance. This interpretation is consistent with the words in by-law 24 that "otherwise the owner shall not be responsible for the performance of the duty of the body corporate under the Body Corporate and Community Management Act Standard Module Section 109(1)".

However, by-law 24 does not confine itself to keeping courtyard areas "neat and tidy". Rather, it goes beyond this to specifically address the upkeep of plants, by requiring that they be "properly tendered (sic)". The word "tendered" makes no sense in this context, and to give proper effect to the by-law, should read "tended". The plain meaning of the word "tended" in relation to plants means cultivated, or looked after. By-law 24 therefore clearly makes each owner of an exclusive use courtyard responsible for maintaining plants in their courtyard.

I am therefore satisfied that by-law 24 makes the owner of lot 1 responsible for the maintenance of the trees in her courtyard. Here, the body corporate contends that the trees were not kept in a neat and tidy condition, as their height exceeded the boundary ceiling height of lot 1. However, I agree with the submission from the solicitors for the owner of lot 1 that by-law 24 does not extend to requiring her to keep the trees to sunhood height. Nevertheless, given the proximity of units to each other in Coronation Towers, I consider that by-law 24 when read in conjunction with by-law 5.3(a), does extend to requiring the owner of lot 1 to trim and keep the trees so that they do not become unkempt and grow to an excessive height.
There is sufficient evidence here from other lot owners and from the arborist, Mr Mulholland, that the owner of lot 1 has not sufficiently maintained at least some of the trees in the exclusive use courtyard attaching to lot 1. In his report of 28 April 2005, Mr Mulholland specifically states at page 6 that "...there is no evidence that any maintenance trimming to control the size of the specimens has been adopted." I therefore reject the submission from the solicitors for the owner of lot 1 that she is properly maintaining her exclusive use courtyard. I propose to order the owner of lot 1 to trim and maintain the trees in her exclusive use courtyard to a level as set out below.

In coming to this conclusion, I stress that I have ignored those statements made in the reports of the arborist, Mr Mulholland to the effect that various aspects of the exclusive use courtyard attaching to lot 1 contravene specific body corporate rulings. Mr Mulholland’s qualification as an arborist does not give him expertise to determine whether by-laws have or have not been contravened. I do not consider that these remarks by Mr Mulholland have tainted his independence to the extent that the cost of obtaining a report from another arborist is warranted. However, I have not attached any weight to these particular remarks from Mr Mulholland, and have confined my reading of his report to matters within his expertise.

Right to a view

As has been submitted by the solicitors for the owner of lot 1, there is no common law right to a view. However, this position may be varied by a by-law to the contrary. This principle has been cited in numerous previous orders of this Office, including recently in Order No. 718-2004, where Adjudicator Meek stated:

"Another major consideration is that no owner has a right to a view. There is no such right at common law and there is nothing in the body corporate’s by-laws to alter that position."

Here, by-law 5.3(a) clearly purports to alter the position at common law by explicitly providing that "plants in gardens within lots must not interfere with the view of the Brisbane River from the window of any lot or restrict light entering lots...".

Section 169(1)(b)(i) of the Act allows the body corporate to make by-laws for the regulation of the use and enjoyment of lots included in the scheme, while section 169(1)(b)(ii) of the Act allows the body corporate to separately make by-laws for the regulation of the use and enjoyment of common property.

By-law 5.3(a) regulates the use and enjoyment of lots in the scheme by preventing certain interference with the view from, and light to, lots. By-law 5.3(a) also regulates the use and enjoyment of common property to the extent that plants are on common property. By-law 5.3(a) therefore falls within the ambit of either section 169(1)(b)(i) or section 169(1)(b)(ii), and to that extent has been validly created.

The effect of by-law 5.3(a) is to ensure that lot owners in Coronation Towers do not obstruct the view from, or light to, another lot. Coronation Towers is located near the Brisbane River, and enjoys a view of the Brisbane River uninterrupted by other improvements. One of the attractions of Coronation Towers would be its view, no doubt factored into a lot owner’s decision to purchase there, and in turn reflected in the purchase price. These factors are undoubtedly the rationale for by-law 5.3(a): to protect the view and market value of the scheme. A potential purchaser of a lot in Coronation Towers would be attracted by the river view. When undertaking searches before settlement, the purchaser would be comforted in the knowledge that the view is protected by by-law 5.3(a).

The solicitors for the owner of lot 1 submitted that by-law 5.3(a) does not require her to lop the trees to sunhood height. I agree with this submission. However, while by-law 5.3(a) does not specify a particular height above which trees cannot grow, it clearly requires that they be kept to a height whereby they do not interfere with the view of the Brisbane River from the window of any lot in Coronation Towers, or restrict light into any lot in Coronation Towers.
I am therefore satisfied that by-law 5.3(a) requires the owner of lot 1 to keep the trees in her exclusive use courtyard in a way so that they do not interfere with the view of the Brisbane River from the window of any lot in Coronation Towers, or restrict light into any lot in Coronation Towers.

The solicitors for the owner of lot 1 submitted that the trees do not materially interfere with the view of the Brisbane River from the window of any lot, or unreasonably restrict light entering any lot. However, there is evidence from the application of the body corporate, and in the submissions from other lot owners, that the height of the trees does indeed interfere with the view and light of other lot owners. This is supported by photographic evidence that shows the trees covering the windows of lots, and obscuring the view of the Brisbane River from other lots.

Specifically, I note attachment 11 in the further submission from the body corporate. I accept the further submission from the solicitors for the owner of lot 1 that the fan palm shown on the right in attachment 11 is not on the exclusive use courtyard attaching to lot 1. However, the remaining foliage shown in this attachment on the exclusive use courtyard clearly obscures most of the view of the Brisbane River from lot 11.

Section 94 of the Act imposes on the body corporate the duty to enforce the community management statement (including the by-laws), but it must do so reasonably and "for the benefit of lot owners". The solicitors for the owner of lot 1 submitted that the evidence from other lot owners only represents the opinion of a minority of lot owners, and that most lot owners have not raised an issue about the trees.

However, the phrase "for the benefit of lot owners" in section 94 does not require the body corporate to act for the benefit of all, or even most, lot owners. This principle has long been applied by this Office and was recently cited in Order No. 808-2003:

"The term does not require that body corporate actions must benefit all owners, nor does it mean that the course of action benefiting the majority of owners must necessarily be followed. Further, it may require the body corporate to take a course of action that is for the benefit of the minority of owners, even a single owner, where the balance of the benefit of the majority is outweighed by the disadvantage to the minority."

Here, there are a sufficient number of lot owners adversely affected by the height of the trees to justify the enforcement of by-law 5.3(a). The silence of other lot owners does not necessarily imply that they approve of the trees affecting the view and light of other lot owners in contravention of by-law 5.3(a). At most, it means that these other lot owners may not be affected, or that the trees are not a relevant issue for them, at least at this point in time.

The solicitors for the owner of lot 1 also submitted that the body corporate acted unfairly and unreasonably towards her by not taking any action against other ground floor lots with trees larger than those on her exclusive use area. In support of this submission, the solicitors for the owner of lot 1 cite photographs C and D and attachment 9. These show some palms in another courtyard that touch the balconies of higher units.

As I have stated above, section 94 of the Act requires the body corporate to act reasonably in enforcing the community management statement. However, no evidence has been provided to support the contention that action against other ground floor lots is warranted. No evidence has been provided of any complaints being made about trees on other courtyards. Even if other trees at Coronation Towers are larger than the trees the subject of this application, there is nothing before me to suggest that they interfere with the views and light of other occupiers. If they do, then they would properly be the basis for a separate complaint, upon complaints from lot owners.

The solicitors for the owner of lot 1 submitted that the body corporate has discriminated against the owner of lot 1 by only taking action against her. However, the body corporate has acted towards the owner of lot 1 upon complaints of other occupiers at Coronation Towers, and the reports of the arborist, Mr Mulholland.

Therefore, it cannot be said that that the owner of lot 1 has been unfairly "singled out" or discriminated against. Rather, the body corporate has proceeded against the owner of lot 1 based on the evidence, and the need for her to comply with the by-laws. I therefore find that the body corporate has not acted unreasonably towards the owner of lot 1.

I will therefore order that within one month, the owner of lot 1 ensures that the trees in her exclusive use courtyard are trimmed and maintained to a level so that they do not interfere with the view of the Brisbane River from the window of any other lot in Coronation Towers, and are at no time higher than the bottom of the windows of lots in Coronation Towers above lot 1.

Nuisance

I have already set out by-law 16 and there is no need to restate it here. In essence, by–law 16 prevents an occupier of a lot from using the lot or the common property in a way that creates a nuisance or hazard, or interferes unreasonably with the use or enjoyment of another lot in the scheme.

Section 169(1)(b)(i) of the Act allows the body corporate to make by-laws for the regulation of the use and enjoyment of the lots included in the scheme, while section 169(1)(b)(ii) of the Act allows the body corporate to separately make by-laws for the regulation of the use and enjoyment of common property.

By-law 16 regulates the use and enjoyment of lots in the scheme by prohibiting uses of lots or common property that would cause a nuisance or hazard, or unreasonably interfere with the use or enjoyment of another lot in the scheme. By-law 16 also regulates the use and enjoyment of common property by prohibiting the use of common property that would cause a nuisance or hazard, or unreasonably interfere with the use or enjoyment of a lot in the scheme. By-law 16 therefore falls within the ambit of either section 169(1)(b)(i) or section 169(1)(b(ii), and to that extent has been validly created.

In any event, by-law 16 mirrors the wording of section 167 of the Act. That section provides:

"167 Nuisances

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that -

I do not consider that this application is about the potential for the trees to be uprooted in inclement weather conditions, or material being scattered from the trees, or the perception that the body corporate is not properly managing Coronation Towers, as submitted by the body corporate. There is no evidence before me to suggest that these matters have been raised in the past with the owner of lot 1, and I consider them to have been raised here by the body corporate merely as an attempt to unnecessarily fortify the application.

I also note the submission from other lot owners that the roots of the trees may cause structural damage. Obviously, this is a matter for expert evidence and in this regard I note that in his report of 28 April 2005, the arborist, Mr Mulholland states:

"The palm specimens... have caused damage to the masonry walls of the raised garden beds... the original selection of the Palm species (Cocos, Dwarf Date and Golden cane palms etc.) was poorly considered and quite inappropriate for the positions in which they have been established... it is my recommendation that any palm specimen closer than 1.0 metre to any entryway, retaining or screen wall, path or other structure should now be removed. In some instances the removal of palms may not be practical, as this may cause significant and unacceptable disruption of nearby structures or services. If this is the case, the specimens would be best cut down to ground level or alternatively, be reduced to a height of approximately 2 metres above ground level... With regard to the trees and other plantings established in the grounds of Mrs H. Lechmer Unit No. 1 several are quite unsuitable for the positions they accommodate. The stump remains of other trees and Palms established in this garden suggest that these were removed because they were either too large for the space available and or has the potential to cause damage to structures or services."

Importantly, Mr Mulholland does not explicitly state that the trees in the exclusive use courtyard attaching to lot 1 will cause structural damage. Indeed, Mr Mulholland also expresses concern that removing other similar palms in the complex may cause "significant and unacceptable disruption of nearby structures or services".

In these circumstances, where the evidence is uncertain whether the trees in the exclusive use courtyard attaching to lot 1 will cause structural damage, I am unable to find a nuisance or unreasonable interference on this ground. I am also not willing to order the removal of the trees from the exclusive use courtyard attaching to lot 1 in circumstances where the removal itself may cause structural damage. If the body corporate wishes to have the trees in the exclusive use courtyard attaching to lot 1 completely removed, then it will need to adduce express expert evidence of the need for that removal in a separate application.

The question here, and the focus of Mr Mulholland’s report, is whether allowing the trees to grow to a height whereby they restrict the view and light of other occupiers, is sufficient at law to constitute a nuisance or unreasonable interference.

The wording in section 167(b) of the Act is broader than the test for a common law nuisance in that it states that occupiers must not "interfere unreasonably" with the use or enjoyment of another lot in the scheme. This was applied by Adjudicator Toohey in Order No. 236-2003:

"...the legislation contemplates that some interference with other owners will always occur and will not necessarily contravene the legislation. The real question is whether the interference is reasonable.

It is expected that neighbouring occupiers will cause some interference with each other’s enjoyment of their lots... however, it seems that an entire roof blocking a significant portion of the view at most times would require strong justification before it is considered reasonable."

Obviously, the source of the alleged unreasonable interference here is not a roof, but rather the trees in the exclusive use courtyard attaching to lot 1. Applying the above principle here, the weight of the evidence suggests that the trees in the exclusive use courtyard attaching to lot 1 do indeed block the view of certain other occupiers.

Given the proximity of Coronation Towers to the Brisbane River, and that the body corporate of Coronation Towers has seen fit to make a specific by-law protecting the views of occupiers, it is clear that the view of the Brisbane River is an important factor for lot owners in Coronation Towers. A group of trees blocking a significant portion of the view would therefore require strong justification before it is considered reasonable. By trimming the trees to an appropriate height, the owner of lot 1 can avoid unreasonably interfering with the view.
I am therefore satisfied that allowing the trees to grow to a height so that they interfere with the view of the Brisbane River by other occupiers is an unreasonable interference, in circumstances where by-law 5.3(a) specifically provides for a right to this view. However, I consider that the trees will no longer constitute unreasonable interference when they are trimmed to a height to allow for this view by other occupiers.

In saying this, I make no finding on the submission from other lot owners at Coronation Towers that exclusive use gardens of a near-city apartment complex such as Coronation Towers are not appropriate for trees of the size of those in the exclusive use area attaching to lot 1. This is because I have already found it incumbent upon the owner of lot 1 to trim and keep the trees in her exclusive use courtyard to a level so that they do not interfere with the view or light of other occupiers at Coronation Towers.

There may be instances when trees of this size are appropriate in some schemes for reasons such as privacy of lot owners, or otherwise. However, that is a matter for the lot owners of the relevant scheme, as expressed through the by-laws of the scheme. I find no evidence of this intention being expressed at Coronation Towers, either in the by-laws for the scheme, or in the submissions from other lot owners.

The solicitors for the owner of lot 1 also submitted that the trees in the exclusive use courtyard attaching to lot 1 improve the quality of life of the owner of lot 1 and other occupiers by providing better privacy, shade, market value, and visual amenity. This may be so for the owner of lot 1, who resides on the ground floor. However, the test for nuisance is not whether the owner of lot 1 is using her property in what would be a reasonable manner if she had no neighbour, but what is reasonable having regard to the fact that she has neighbours (St Pierre v. Ontario (Minister for Transportation and Communications [1987] 1 SCR 906 at 909).

Here, there is no evidence to support the submission from the solicitors for the owner of lot 1 that the trees in her exclusive use courtyard improve the quality of life of other occupiers. Rather, the submissions from other occupiers suggest that they do not seek privacy, shade, or visual amenity from the trees. Instead, these other occupiers prefer the visual amenity of the view of the Brisbane River, and this is reflected in by-law 5.3(a). Of course, section 94 of the Act requires the body corporate to act reasonably and "for the benefit of lot owners". As I have stated above, I am satisfied that there are a sufficient number of lot owners adversely affected by the height of the trees that it constitutes unreasonable interference with the enjoyment of their lots, contrary to section 167(b) of the Act.

As for market value, I am satisfied by by-law 5.3(a), and the submissions from the body corporate and other lot owners that it is the view of the Brisbane River that is more a selling point for lots in Coronation Towers, rather than the presence of trees in the exclusive use courtyard attaching to lot 1.

The solicitors for the owner of lot 1 also submitted that she has already compromised by removing some trees. That may be so, but it does not obviate from the need for her to ensure that the remaining trees do not unreasonably interfere with other occupiers of Coronation Towers enjoying their lots.

The solicitors for the owner of lot 1 seem to implicitly accept this, by adding that the remaining trees are sparse and grow on the bedroom side of the units where there are no balconies. However, the factual basis for this submission from the solicitors for the owner of lot 1 is not reflected in the photographic evidence that I have been provided. These photographs show that the trees in the exclusive use courtyard attaching to lot 1 obscure the view by other occupiers, confirmed in the submissions from other occupiers. I therefore do not accept the factual basis for this submission from the solicitors for the owner of lot 1.

The solicitors for the owner of lot 1 also submitted that by-laws 16(a) and (b) do not require the respondent to lop the trees to sunhood height. I agree with this submission. However, I am satisfied that by-laws 16(a) and (b) do require the owner of lot 1 to take measures to reduce the impact of the trees on other occupiers.

As I have stated above, this means that the owner of lot 1 must ensure that the trees do not grow to a height so that they interfere with the view of the Brisbane River by other occupiers. This is because by-law 5.3(a) expressly allows for this view. Therefore, the unreasonable interference is not that the trees have grown above sunhood height. Rather, it is that the trees unreasonably interfere with the view of the Brisbane River by other occupiers.

Body corporate’s right of entry and costs of trimming

The next issue is who is responsible for the costs of trimming the trees so that they do not unreasonably interfere with the view or light of other occupiers, or constitute unreasonable interference.

I have already concluded that by-law 24 makes the owner of lot 1 responsible for maintaining the trees in her exclusive use courtyard. Importantly, by-law 24 specifically provides that the owners of these courtyard areas shall be responsible "at the owner’s cost" to keep these areas in a neat and tidy condition, and the plants properly tended, etc..

I consider the phrase "at the owner’s cost" in by-law 24 to be unambiguous. It explicitly requires the owner of each exclusive use courtyard to maintain the courtyard at their own cost. This is supported in the submissions from other lot owners that other owners of exclusive use areas pay the costs of repair and maintenance of those areas.

Additionally, by-law 24 confers the benefit of the use of the courtyard attaching to lot 1 exclusively on the owner of lot 1. No other lot owner enjoys the benefit of using that courtyard. In these circumstances and in the absence of a by-law to the contrary, it would be inequitable to require other lot owners to contribute to the cost of maintaining that courtyard, when they do not enjoy its use.

The owner of lot 1 has the privilege of exclusive use of the courtyard attaching to lot 1. With that privilege, comes the responsibility to properly maintain the trees in the exclusive use courtyard, regardless of who initially planted the trees in the courtyard. That privilege and responsibility have a cost that properly lies with the owner of lot 1.

The body corporate has also sought orders giving it the right to enter the courtyard to lop the trees and recover its costs from the owner of lot 1, should she fail to properly trim the trees.

Although the body corporate seeks to rely on by-laws 5.3(a) and 5.4 to enter the exclusive use courtyard attaching to lot 1 and carry out work, section 161 of the Act and section 121 of the Standard Module provide the primary right to enter in these circumstances.

Section 161 of the Act provides:

"161 Body corporate’s authority to carry out work of owners and occupiers

Section 121 of the Standard Module provides:

"121 Body corporate may carry out work if required of owners and occupiers

Here, and in accordance with my reasons above, the owner of lot 1 is required to:

Thus, section 121(1)(a) and (c) of the Standard Module apply. Therefore, if the owner of lot 1 fails to carry out the required work, then the body corporate may do so, and recover the costs of doing so from her, under section 121(2).

Further, section 163 of the Act provides:

"163 Power to enter lot

I have already determined that the trees on the exclusive use courtyard attaching to lot 1 contravene by-law 5.3(a). Therefore, the body corporate is authorised under both section 163(1) of the Act and by-law 5.3(a) to enter the exclusive use courtyard attaching to lot 1 to carry out work necessary to stop the contravention. This work will only extend to that necessary to prevent the ongoing interference by the trees. Removal of the trees would only be necessary if it is so in the opinion of an expert landscaping consultant. I am not satisfied that removal of the trees is necessary here.

Section 163(2)(b)(ii) of the Act further provides that, in cases for entry onto exclusive use common property, the body corporate’s power of entry may be exercised at a reasonable time after at least seven days notice of the intended entry has been given to the owner of the lot to whom the exclusive use by-law attaches.

The Act does not specify the exact requirements for a valid notice of intended entry. However, the body corporate must act reasonably in performing its functions and administering common property (sections 94 and 152 of the Act). The power of entry also provides a limited exception to a lot owner’s fundamental right to exclusive possession, and should therefore be exercised discriminately and in accordance with strict requirements. I therefore consider that for the purposes of this Order, a Notice of Intended Entry will be valid if contains the following minimum information:

I am therefore satisfied that the body corporate may authorise an arborist or other qualified person to enter the exclusive use courtyard attaching to lot 1 to carry out the work that I have referred to above, should the owner of lot 1 fail to carry out that work within seven days of having received a valid Notice of Intended Entry. This right of entry is also conditional upon the body corporate removing any trimmings that fall onto lot 1 or the exclusive use courtyard attaching to lot 1 due to the work.

The body corporate has also sought to rely on by-law 21 to allow it to recover the costs of any work it is required to undertake on the exclusive use courtyard attaching to lot 1, as a debt. I have already set out by-law 21 above and there is no need to restate it here. Section 180(1) and (6) of the Act are relevant and provide:

"180 Limitations for by-laws

(1) If a by-law for a community titles scheme is inconsistent with this Act (including a

regulation module applying to the scheme) or another Act, this by-law is invalid to the

(6) A by-law (other than an exclusive use by-law) must not impose a monetary liability on

the owner or occupier of a lot included in a community titles scheme."

The term "monetary liability" in section 180(6) of the Act was considered by Adjudicator Meek in Order No. 464-2004, since cited with approval in subsequent decisions of this Office. Adjudicator Meek stated:

"I conclude that these words should be ‘read as having their ordinary meanings’ (as per Judge Wylie QC in the District Court appeal No. D5614/01 Mineralogy Pty Ltd and The Body Corporate for "The Lakes Coolum" on the question of how words in a by-law should be interpreted)."

In Order No. 464-2004, the Adjudicator was considering the validity of a by-law that included a provision as follows:

"3. Where the body corporate expends money to make good damage caused by a breach of the Act, or of these by-laws by any owner or occupier of a lot or the guests, servants, employees, agents, children, invitees, or licensees of the owner or occupier of a lot or any of them, the body corporate shall be entitled to recover the amount so expended as a debt in any action in any court of competent jurisdiction from the owner of the lot at the time when the breach occurred."

The Adjudicator then held that the by-law "...impose(d) a monetary liability on the owner or occupier of a lot, and consequently...is invalid in its entirety on this basis."

I consider that by-law 21 here is sufficiently similar to the by-law held to be invalid in Order No. 464-2004. I therefore rule that by-law 21 is wholly inconsistent with section 180(6) of the Act and is therefore invalid under section 180(1) of the Act. Therefore, the body corporate cannot recover under by-law 21 the costs of any work it performs.

If the body corporate wishes to recover the costs of any work that it is required to undertake on the exclusive use courtyard attaching to lot 1, then it must do so under the Act or the Standard Module. Section 125 of the Standard Module provides that a monetary liability imposed under an exclusive use by-law on a lot owner may be recovered as a debt. Here, by-law 24 expressly imposes the costs of maintaining the exclusive use courtyard attaching to lot 1 on the owner of lot 1. Therefore, the body corporate may recover from the owner of lot 1 under section 125 any costs it incurs in fulfilling her obligation under by-law 24.

Illegal or Injurious Purpose

I have already set out by-law 15.1, and there is no need to restate it here. By-law 15.1 regulates the use and enjoyment of lots in the scheme by prohibiting lots from being used for a purpose that is illegal, injurious to the reputation of Coronation Towers, or that may interfere with its good management. By-law 15.1 falls within the ambit of section 169(1)(b)(i) of the Act, and to that extent has been validly created.

The solicitors for the owner of lot 1 submitted that by-law 15.1 does not regulate the height of plants or require that trees be kept to sunhood height, but only prohibits unlawful and improper purposes. I agree with this submission. It is clear to me that growing trees in the exclusive use courtyard attaching to lot 1 is not an illegal purpose.

However, for the reasons I have stated above under the heading "Responsibility to maintain trees", a failure by the owner of lot 1 to properly trim and maintain the trees in her exclusive use courtyard could interfere with the good management of Coronation Towers, by giving it a dilapidated and unkempt appearance.

Further, for the reasons I have stated above under the heading "Right to a view", a failure by the owner of lot 1 to trim and keep the trees in her exclusive use courtyard to a height so that they do not interfere with the view and light of other occupiers, could injure the reputation of Coronation Towers. This is because it would not be keeping the promise in by-law 5.3(a) of the view of the Brisbane River.

I therefore consider that by-law 15.1 requires the owner of lot 1 to trim and maintain the trees in her exclusive use courtyard to a height so that they do not give the area an untidy appearance, or interfere with the view of the Brisbane River by other occupiers.

By-law allowing Body Corporate Rules

In its application, the body corporate contended that the owner of lot 1 failed to observe the rules of the body corporate about maintaining the height of the trees to sunhood level.

I have already quoted by-law 14.2 above and there is no need to restate it here. In essence, by-law 14.2 purports to confer a right on the body corporate to make rules about the common property, provided that they are not inconsistent with the by-laws.

Section 169 of the Act allows the body corporate for the scheme to make by-laws regulating the use and enjoyment of the common property. It does not provide for a separate rule-making process other than the making of by-laws. The Act and the Standard Module provide the means by which rules governing community titles schemes are to be made, and that is the by-law system.

The system is based on lot owners having input into the rules under which they are governed, by way of voting and resolution rights. The system requires transparency, so that all owners and potential purchasers are aware of, and can contribute to, the by-laws under which a scheme is governed. Any rule not made in compliance with the by-law regime established by the Act and the applicable regulation module is ultra vires and beyond the scope of the Act.

Therefore, by-law 14.2 is void as it provides for a rule-making process outside the scope of the Act. If the body corporate wishes to make rules relating to the common property as contemplated by by-law 14.2, then it must do so through the usual by-law process provided for under the Act and the Standard Module. In this way, lot owners can be fully notified of the rules governing the scheme and have their say.

For this reason, I find that that the "rule" purportedly made under by-law 14.2 requiring the owner of lot 1 to lop the trees in her exclusive use courtyard to sunroof height is void.

I therefore conclude that the owner of lot 1 is not required to maintain the height of the trees specifically to sunhood level, unless and until the body corporate passes a by-law to that effect in accordance with the procedures prescribed by the Act and the Standard Module. However, the owner of lot 1 is still required to trim and maintain the trees in accordance with my other orders.

Costs

For the reasons I have provided above, I conclude that the owner of lot 1 is required to trim and maintain the trees in her exclusive use courtyard to a level so that they do not interfere with the view of other occupiers in Coronation Towers, and are at no time higher than the bottom of the windows of lots in Coronation Towers above lot 1. I will require the owner of lot 1 to do this within one month of this Order.

I also declare that after the lapse of one month, if the trees in the exclusive use courtyard attaching to lot 1 continue to interfere with the view of the Brisbane River from the window of any other lot in Coronation Towers, or are higher than the bottom of the window of any lot in Coronation Towers above lot 1, then upon delivering a "Notice of Intended Entry" and the expiration of the time stated therein (no less than seven days), the body corporate may enter the exclusive use courtyard solely to trim the trees to an extent reasonably necessary for them not to interfere with the view of other occupiers in Coronation Towers, and are not higher than the bottom of the windows of lots in Coronation Towers above lot 1. I also declare that the reasonable costs of doing this will be recoverable by the body corporate from the owner of lot 1 as a debt.

In their submissions, the solicitors for the owner of lot 1 sought an order that the body corporate committee pay her reasonable legal costs of the dispute. Given my conclusions above, the owner of lot 1 cannot be said to have been successful in this application, and for that reason alone is not entitled to payment of her legal costs. However, for the sake of completeness and in the event that my conclusions are held to be wrong, I will separately address the issue of legal costs.

There is no inherent jurisdiction to award costs. A recent statement of this principle was made by His Honour Judge McGill in Woodrange Pty Ltd v. Le Grande Broadwater Body Corporate [2004] QDC 215 at page 225:

"In my opinion, if a statutory body concerned with resolution of disputes, such as a specialist adjudicator, is to be given power to make an order in relation to legal professional costs of the adjudication, that power must be conferred expressly or clearly appear, and it does not clearly appear merely because the adjudicator is given power in general terms to make such order as may be just and equitable in order to resolve the dispute. To decide otherwise would in my opinion involve departure from an established approach to statutory interpretation which has the approval of the Queensland Full Court and the Queensland Court of Appeal."

The Act here does not expressly confer a power on me to award legal costs. The policy rationale for this was set out by His Honour Judge McGill in Woodrange, supra, at page 226:

"In circumstances where the procedure is essentially inquisitorial rather than adversarial, the legislature may well have taken the view that there was less need for parties to incur legal costs in relation to the investigation, and therefore if parties choose to do so they should be left to bear those costs themselves. There is no particular indication that that was the approach of the legislature, but there is no particular indication to the contrary. This really just shows that the existence of a power to deal with legal professional costs is not in the present circumstances a matter of necessary implication."

Given this and the absence of an express power in the Act to award costs, I find that I do not have jurisdiction to make an order that one party pay the legal costs of another party to the application.

Conclusion

The solicitors for the owner of lot 1 also submitted that orders sought by the committee disregard her right to exclusive use of her courtyard. However, as I have stated above, that right of exclusive use is subject to the owner of lot 1 properly keeping the courtyard attaching to lot 1 (by-law 24), ensuring that plants do not interfere with the view of the Brisbane River or restrict light into other lots (by-law 5.3), and ensuring that her use of the courtyard does not constitute unreasonable interference (section 167 of the Act, and by-law 16).

Further, the solicitors for the owner of lot 1 submitted that the orders sought by the committee would provide it with an absolute discretion not provided in the by-laws to require the lopping of trees to sunhood height. The orders I propose to make do not extend to providing the committee with this discretion. I have specifically rejected the validity of the rule that purports to require this.

I also stress that the owner of lot 1 is not required by this Order to remove any of the trees in her exclusive use courtyard. Rather, the owner of lot 1 must merely trim and maintain those trees to a level so that they do not interfere with the view of the Brisbane River from the window of any other lot in Coronation Towers, and are at no time higher than the bottom of the window of any lot in Coronation Towers above lot 1.

The solicitors for the owner of lot 1 also noted that there are no requirements in the by-laws that the costs of trimming be reasonable, and that at least two quotes be obtained before the exercise of the Committee’s discretion. I will specifically address this by requiring that in this matter the body corporate obtain two quotes for any work it is authorised to undertake on the exclusive use courtyard attaching to lot 1, before it can seek to recover the costs of that work from the owner of lot 1.

I order accordingly.

Number of Scheme:	10948
Name of Scheme:	Coronation Towers
Address of Scheme:	24 Dunmore Terrace, Auchenflower

(a)	causes a nuisance or hazard; or
(b)	interferes unreasonably with the use or enjoyment of another lot included in the scheme; or
(c)	interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property."

(a)	to recover unpaid contributions or other amounts; or
(b)	to make good damage caused by a breach of the Act or of these by-laws by any occupier or an invitee of an occupier

(a)	to inspect the lot or common property and find out whether work the body corporate is authorised or required to carry out is necessary; or
(b)	to carry out work the body corporate is authorised or required to carry out."

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Coronation Towers [2006] QBCCMCmr 229 (5 May 2006)