Cornhill Gardens [2006] QBCCMCmr 49 (7 February 2006)

Last Updated: 19 December 2006

REFERENCE: 0686-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19308
Name of Scheme:	Cornhill Gardens
Address of Scheme:	134 Hill Road RUNCORN QLD 4113

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

Body Corporate for Cornhill Gardens CTS 19308

I hereby order that the owner of lot 54, Jody Nan Lo Monaco, shall within 30 days of the date of this order, reinstate to their original condition the gardens in the front of lot 54 and lot 55, all of which have been changed without body corporate approval.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0686-2005

"Cornhill Gardens" CTS 19308

ORDER SOUGHT

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

That the owner of unit 54 change their front garden back to its original state as well as unit 55’s garden as they have also made changes to it without the body corporate’s permission.

JURISDICTION

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

By-law contravention notices have been sent to the owner before lodgement of the dispute application (section 184 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)).

BACKGROUND

The applicant stated that in August 2004 the body corporate committee received a letter from the resident manager of the scheme advising that the owner of lot 54 had changed the front of their garden as well as that of lot 55’s garden without the permission of the body corporate.

The body corporate manager wrote to the owner requesting that the gardens be reinstated. When no response was received or action taken, a Notice of Continuing Contravention was issued on 22 November 2004, and again on 11 July 2005. The applicant stated that the owner of lot 54 has ignored both notices.

The owner of lot 54 was invited to respond to the application, as were all other owners in the scheme. The owner of lot 54 did not respond. Submissions were received from two other owners in the scheme who both stated that in their view the alteration to the gardens detracts from the overall appearance of the scheme, and thereby has the potential to diminish the value of lots within it.

DETERMINATION

By-laws generally may provide for the regulation of, including conditions applying to, the use and enjoyment of lots and common property within a scheme (section 169 of the Act). This scheme’s by-laws provide that there shall be no change to the external appearance of lots without the consent of the body corporate (by-law 4.1). The by-laws were recorded in the community management statement on 9 June 1998, and are binding on all members of the body corporate (section 59(2)(b) of the Act).

The photographs provided by the body corporate reveal that the gardens in front of lots 54 and 55 have been changed and are quite different from other gardens within the scheme. The owner of lot 54 has not challenged the body corporate’s assertions that no consent was given for these changes.

I have therefore ordered that the gardens be reinstated.

It should be noted that section 288 of the Act provides as follows:

288 Failure to comply with adjudicator’s order

(1) A person who contravenes an order under this chapter (other

than an order for the payment of an amount) commits an

offence.

Maximum penalty--400 penalty units. ($30,000.00) (Emphasis added)

(2) A proceeding for an offence under subsection (1) (other than a

proceeding taken by the Attorney-General) may only be taken

by--

(a) the applicant for the application for the original order; or

(b) a person in whose favour the order mentioned in

subsection (1) is made; or

(c) the body corporate; or

(d) an administrator appointed under this chapter who is

authorised to perform obligations of the body corporate

or its committee.

(3) Costs awarded against a defendant in a proceeding under this

section may include the amount of the fee paid to the

commissioner on making the application for the original

order.

(4) In subsection (3)--

application for the original order means the application for

the order of an adjudicator for the purposes of which the order

mentioned in subsection (1) is made.