Figtree [2006] QBCCMCmr 666 (15 December 2006)

Last Updated: 27 March 2007

REFERENCE: 0830-2006

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21687
Name of Scheme:	Figtree
Address of Scheme:	QUEENSLAND

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

Ms Ellen Poynton, the Owner(s) of lot 8

I hereby order that, pending a final determination, the body corporate for Figtree must not demolish the existing fence between Lot 8 Figtree and Lot 1 Figtree East or proceed with construction of a new fence. This is an interim order and will remain in effect for a period of not longer than six months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0830-2006

"Figtree" CTS 21687

Application

The applicant, Ellen Poynton, the owner of Lot 8 (the applicant) has sought the following interim order of an adjudicator:

"That all work on replacement and improvement of fence between Lot 8 (32/26 Elliott Street) and Figtree East Lot 1 be ordered to be stopped".

In addition, the applicant has sought the following final orders:

"That the resolution (of the committee) to replace Mrs Poynton’s fence with a coloutbond fence be declared invalid as it was not a special resolution of all residents and the new fence constitutes an ‘improvement’ which requires a special resolution.

That the fence between Lot 8 (no 32/26 Elliott Street) and Figtree East be left as it is."

Jurisdiction

Figtree CTS 21687 is a 24 lot scheme registered under the Body Corporate and Community Management Act 1997 and is operating under the Body Corporate and Community Management (Standard Module) Regulation 1997. Typically, this module is intended for residential arrangements.

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)).

Grounds

I quote the applications grounds as follows:

The issue has arisen out of a series of decisions that began in 2004. (A copy of the minutes of the Committee Meeting of 23 July 2004) shows that the Committee started to look into the fencing issue in July 2004. By October 2004 the committee had decided that some sections (note they don’t refer to the entire fence) that "some sections" of the boundary fence with Fig tree East needed to be replaced.

The fence between Figtree East and Mrs. Poynton’ s property at Lot 8 which is No 32/26 Elliot Street was replaced five years ago in 2001 as it was at that time in disrepair. The BC Committee kindly replaced it with very good quality wood. The fence remains in excellent repair. See Foto 1. and Foto 2.

It was a strange decision to replace parts only of a rustic wooden ranch style fence with a colorbond steel fence. This seems to be a decision that is either irrational or a calculated plan to do away with the rustic ranch style fence without saying so and without putting it to the owners. Who came up with the colorbond idea is not articulated but seem at odds with the "some sections" concept. This is the start of an irrational and unsupported sinister change to the concept and style of the Figtree/Figtree East complex.

In January 2005 the Committee without notice of the "improvement" and required Special Resolution vote --with notice to all owners - decided to replace ALL the rustic wooden boundary fences with steel colorbond. This included fencing the areas that allowed access between Figtree and Figtree East. On the (attached) map the area between lot 8 and lot 9 was an open walkway between the two complexes that are designed as a whole and had open walkways between them done in the rustic ranch style low wooden fences. There was no boundary fence between lots 8 and 9 on the Figtree plan - that is the common area met up with and continued into a common area in Figtree East.

At no time did the Committee ever pass a motion to fence off the common area access to Figtree East and construct a 2 metre high fence there. This stretch of fence can only be described as an atrocious "improvement". Had ALL the residents had a vote on the matter it would never have been allowed.

At the general meeting of 26 June 2006 the meeting voted to postpone the fencing construction to 2007. This has not occurred.

It is the contention of Mrs. Poynton that the Committee has breached its own resolution is pushing the colorbond fence through in 2006.

I was informed by the information officers of the BCCM that a new fence of an extension of an old fence or a raising of the height of a fence is an issue of "improvement" and that on issues of improvement the entire BC, that is all the owners, would have a Special Resolution vote and that if there was not a 2/3 majority for the "improvement" or a 25% "No" vote against the "improvement" it could not proceed. Mrs. Poynton took this to mean that an "improvement" required a Special Resolution vote of the entire owner collective of the BC, not just a committee vote.

The objection is on the basis that there was no such "Special Resolution" vote of owners to

1) increase the height of the fence from 1.4 metres to 1.9 metres. (photos 3 and 4 and 5
show.the much higher fence) which constitutes an "improvement" requiring a Special Resolution.

2) that the issue of changing from wood fences to colorbond steel was a significant aesthetic issue that required a Special Resolution, and must be seen as an "improvement"

3) that the fence was being put in to close the open space (shown on the map) between Figtree and Figtree East that allowed the walkway that existed between Lot 8 and Lot 9 in Figtree to continue through to Figtree east. This was clearly a new fence hence an "improvement" requiring a Special Resolution.

4) That the BC Committee intended to extend the fence in front of the existing fence at the front of the complex (shown on the map and a photo) another unwanted and unapproved "improvement" requiring a Special Resolution.

Hence the outcome sought is to void the decision o the Committee to replace the existing rustic wooden fences with the Colorbond fence as an invalid decision, as it was not a whole complex owners Special Resolution. Indeed the closure of the walkway through to Figtree East between Lots 8 and 9 and the extension in front of the complex were never even notified to the owners as "improvements".

Furthermore Mrs. Poynton’ s fence, having only been constructed 5 years prior was not in need of replacement at all and it is, in particular, an abuse of process by the Committee and Management to force this upon her..

You requested in your letter of 6 November 2006, proof that the Committee of the BC consented to the 1.9 metre colorbond steel fence being constructed between Mrs. Poynton’s property and the Figtree East.

I herewith supply a true copy of the letter faxed to me and sent to Mrs. Poynton 11 October. 2006 by Strata-Jem for the Committee. This states the Committee’s decision, apparently the Committee delegated (quite improperly) the decision on fence height to Figtree East.

The above and photographs supplies the background and the proof of the "improvement" issue which yet requires a Special Resolution.

Submissions

Submissions were invited from the body corporate and the body corporate manager. The body corporate manager responded for both.

For this interim stage, it is sufficient to say that the committee had not considered the matter as an improvement and that it was within the expenditure limit of the committee. They provide correspondence, suggesting that Mrs Poynton had at one point consented to the use of the Colourbond materials.

Urgent Interim relief

An interim order will not be granted unless is it necessary due to the nature or urgency of the circumstances to which the application relates (Act, 279). Further, any orders granted must be just and equitable in the circumstances (Act, 276).

In determining whether it is just and equitable to grant interim relief it is relevant to briefly consider whether the application raises any serious questions for final determination.

It is also relevant to consider whether any inconvenience likely to result from the interim order is outweighed by the potential detriment alleged in the application. Evidence that an interim order is necessary to prevent serious or irreparable harm is significant.

The demolition of the existing fence in preparation for a new fence appears inappropriate if a final order should be made in favour of the applicant.

Serious legal question

The applicant’s submissions satisfy me that there is a serious legal question about whether the committee has proper authority under the legislation to consent to the erection of a different type of fence without consultation with the Body Corporate as a whole.

Further, I am interested to receive the submissions of other owners in relation to their views on the materials and height chosen and their recollection of the consultation process.

Inconvenience from an interim order

In considering whether to grant the interim order sought, it is relevant to balance the inconvenience caused by an interim order against inconvenience caused by waiting until a final determination to grant any necessary orders.

If the body corporate was allowed to demolish the fence it would be very difficult to make final orders rectifying the situation if the applicant was ultimately successful in the claim that the new fence is not properly authorised. Less inconvenience would result if I were to grant an interim order preventing the demolition from proceeding pending a final determination of whether it was properly authorised.

I will therefore make an interim order that the body corporate must not proceed with demolition of the existing fence or construction of the new fence until a final order is made.