116 Pohlman [2006] QBCCMCmr 533 (19 October 2006)

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

I hereby order as follows –

1. that Catherine Calder, the Respondent, and owner of Lot 1, remove all fencing situated on common property approximately 3 metres beyond the boundary of her exclusive use area as shown marked "A" on Plan S2433-501 lodged with the Registrar of Titles as part of the Community Management Statement;
2. that the Respondent shall restore the fence on the original boundary of her exclusive use area "A" as shown on the said plan;
3. that the fencing material of the restored fence shall be the same as the fence which was removed, unless some other material is approved by the body corporate;
4. that the Respondent remove any structure(s) which are currently situated on common property adjacent to her exclusive use area, failing consent being granted to maintain such structure(s) by the body corporate ;
5. that the Respondent shall carry out such removal and restoration within 2 months of the date of this order and at her own expense;
6. that the Respondent shall make good, within 2 months of the date of this order, any damage to walls, lawns, trees, the electric meter box, or other common property caused by the removal and restoration of the fence or any structure(s).

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0574-2006

"116 Pohlman" CTS 29169

APPLICATION

This is an application dated 14^th July 2006 and amended on 8^th August 2006 by the Body Corporate for 116 Pohlman CTS 29169 (the Applicant) against Catherine Calder (the Respondent) owner of Lot 1 in the scheme, for an order that the Respondent removes a fence which she has allowed to be placed on common property and restores the fence to its original position on the boundary of her exclusive use area.

JURISDICTION

"116 Pohlman" Community Titles Scheme 29169 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Small Schemes) Regulation 1997 (Small Schemes Module). There are four lots in the scheme created under a Building Format Plan of subdivision.

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)).

SUBMISSIONS

The Applicant says that the Respondent has removed an existing common boundary fence and relocated the fence 3 meters over the common boundary line of the Respondent’s exclusive use area. This has also affected accessibility to the electricity meter box.

The Applicant has written to the Respondent about the fence through its body corporate manager, Body Corporate and Community Administration Services Pty Ltd on 31^st January 2006, 9th March 2006 and 17^th May 2006. The body corporate manager wrote on 31^st January 2006 : "It appears that your tenant has relocated the fence about 3 metres and this is over the boundary line of your exclusive use area." The Respondent did not reply to the letters.

The Respondent on 13^th September 2006 made a submission through her solicitors. She says that the fence was constructed by her former partner without her knowledge or consent. She is willing to remove the fence as currently located and restore the fence to its original position, although she cannot do so immediately owing to lack of funds. She undertakes to so such work "before Christmas 2006," and earlier if finances allow.

DETERMINATION

Since the facts in this matter are not in dispute, I shall make an order in the terms sought, that may be enforced by the Applicant, in accordance with the legislation, in the Magistrates Court.

I note that the Applicant’s letter of 17^th May 2006 refers also to a locker/garden shed situated on the common property " after the fence has been relocated over [the] exclusive use boundary line," and that the removal of this locker/garden shed is not sought by the Applicant in this application. For the avoidance of doubt, I shall make an order that any structure situated on the common property without the consent of the body corporate be also removed. The Respondent is of course at liberty to seek the consent of the Applicant for such a structure to remain.

Number of Scheme:	29169
Name of Scheme:	116 Pohlman
Address of Scheme:	116 Pohlman Street SOUTHPORT QLD 4215

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

116 Pohlman [2006] QBCCMCmr 533 (19 October 2006)