La Lagon [2006] QBCCMCmr 740 (20 September 2006)

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

I hereby order as follows

1. The body corporate shall not cut down, nor authorise the cutting down, of any trees on the common property, nor make nor authorise any changes to the grounds, shrubs or garden beds on the common property, regular maintenance and mowing excepted, until further order.
2. The body corporate Secretary shall within 14 days of the date of this order find out whether an insurance claim can be made on any insurance cover held by Ian Clayton for cutting down trees which belonged to the body corporate in error, and put the outcome of such investigation in any submission in respect of the final order outcome.

I further order that this interim order expires when a further interim order is issued, or when the application is finally determined or discontinued, or upon the expiry of 12 months from the date of this order, whichever is the earliest.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0662-2006

"La (Le) Lagon" CTS 22150

APPLICATION

This is an application dated 15^th and 16^th August 2006 and amended on 31^st August 2006, by Alex Somogyi , owner of Lot 3 in the scheme and Hans Meyer, occupier of Lot 2 in the scheme (the Applicants) against the body corporate for the scheme (the body corporate) for an order that trees which have been cut down are replaced.

The applicants seek an interim order that all cutting down of trees ceases immediately and that further destruction of the common property garden beds and other common property areas also ceases.

JURISDICTION

"La (Le) Lagon" Community Titles Scheme 22150 is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management ( Standard Module) Regulation 1997 (Standard Module). There are five lots in the scheme created under a Group Title 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)).

Section 247(3) of the Act allows the Commissioner to refer an application to an adjudicator for consideration for an interim order even though proper notice of the application has not been given to the body corporate or other affected persons, and despite the fact that parties to the application have not been given an opportunity to make a submission about the matters in dispute. It seems to me that the Act allows this process because applications for interim orders often relate to emergency or otherwise urgent circumstances, where it is simply impractical or impossible to allow a period for submissions prior to the consideration of the application for interim orders. It is also relevant that generally the purpose of an interim order is to simply maintain the "status quo" of a situation, and not to finally resolve the matters in dispute.

Section 279(1) of the Act allows an adjudicator to issue an interim order in response to an application "if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates". Read together with section 247(3), section 279(1) appears to allow an adjudicator to issue an interim order without any reference to other parties to the dispute.

Notwithstanding that the Act allows for interim orders to be issued without reference to other parties, I am of the view that when possible, it is far preferable and more consistent with the principles of natural justice, to allow affected persons to make a submission about an application (even if the time allowed for submissions is necessarily brief) prior to the determination of an application for an interim order.

I therefore sought submissions from the body corporate committee and the body corporate manager.

The Applicants say that on 15^th August 2006, Hans Meyer (Mr Meyer) saw a gardener cutting down umbrella trees on the common property. My Meyer saw that a 20ft umbrella trees had been cut down outside Lot 3, and then noticed that two umbrella trees had been cut down outside Lot 2. The applicants call these " their" trees because they are outside their respective lots. Mr Meyer asked the gardener to stop and informed the applicant Alex Somogyi. (Mr Somogyi) The gardener advised that he was authorised to cut down all the umbrella trees and " a lot of other trees and shrubs to a height of 4 feet."

The two applicants later inspected the work done by the gardener, about which they had had no information from the body corporate. Mr Somogyi found that he had in fact lost two trees out of four. Both applicants have lost their shade trees.

The applicants contacted the body corporate manager Glenis Smith of Strata and Body Corporate Services (the body corporate manager) who explained that the trees had been cut down by mistake. The Applicants complain that they have no contact with the body corporate manager, and that the scheme is not properly run and has tenants who " run riot and park wherever they like."

The Applicants would like to see the trees which were mistakenly cut down replaced , and that "some form of consultation takes place prior to the replacement." The trees should be paid for by the person who made the mistake, and not out of body corporate funds. If it was the contractor at fault, then it can be paid for out of his insurance.

They further seek an order that " no quotes or works of a substantial nature be undertaken by the body corporate, the committee or their agents without prior written advices and subsequent consultation." They say that there are constant by-law breaches but this application has no details of those breaches alleged.

Mr Meyer says that he had put in an application to this Office immediately before the trees were removed and believes that the body corporate removed the trees in retaliation. Mr Somogyi did not know about Mr Meyer’s application.

The body corporate manager supplied a letter from the gardener who did the work, Ian Clayton. (Mr Clayton). Mr Clayton says that he removed the trees as a result of his misinterpretation of instructions from the body corporate manager. The body corporate manager had asked him by fax on 14^th August 2006 to quote for trimming the shrubbery on the side boundary to a height of 2.5 metres and to remove two rubber trees in front of Lots 2 and 3 and poison the stumps. He says: - "The mistake was mine." He advises that the removed tree was however too close to the building and eventually would cause structural damage. He advises that "the remaining tree is also too close to the building and will eventually have to be removed."

Stewart Nicoll, (Mr Nicoll) co-owner of Lot 5 in the scheme, and on behalf of Vassin Pty Ltd which is company which owns Lots 1 and 4 in the scheme, says that the removal of the trees was unfortunate but that there is no conspiracy. He says that he asked the body corporate manager to obtain a quotation to " top the row of trees that are on the boundary between number 6 and number 8 Aquila Court," since these trees are getting too tall and blocking light to Lot 5. He also asked for a quotation on the removal of the umbrella trees as an afterthought, and intended to discuss that with applicants, since he is concerned that umbrella trees are a menace to building foundations and pipes. He says that Mr Somogyi is on the committee, and that he (Mr Nicoll) makes regular visits to the scheme and if he does not see any problems, he does not take action.

DETERMINATION

The facts in this matter are not disputed, and in fact, in this particular application there is little evidence of a dispute. The Applicants are naturally upset to have lost "their" trees, which provided shade for their respective lots. The body corporate manager and the gardener have explained that the trees were cut down in error. The Applicants have not provided any evidence to show that a request to the body corporate to have the trees replaced has been refused.

However, I note that neither in the submission from Mr Nicoll, nor from the body corporate manager and gardener were there any proposals for the trees to be replaced, perhaps because submissions were only sought on the interim application for all tree cutting and gardening works on the common property to cease.

In order to maintain the status quo, I order that no further cutting down of trees on the common property takes place, or any changes made to the common property shrubs or garden beds until further order. Regular maintenance and lawn mowing is excepted. The interim order as requested is therefore allowed.

The final order outcome seeks the replacement of the removed trees. Mr. Clayton advises that at least two of the trees were too close to the building. The Applicants have not specified the type of trees which they would like to replace the removed trees. Mr Nicholls, whom I understand to be speaking on his own behalf and for Vassin Pty Ltd clearly does not want to see more umbrella trees.

Whilst umbrella trees are not a declared plant under the Land Protection (Pest and Stock Route Management) Act 2002, local councils and the Department of Natural Resources and Mines are taking steps to eradicate them in southern Queensland, where they are spreading into native bushland. They are no longer recommended for landscaping projects, or under development approvals, but they are not "prohibited", that is, they are not a declared weed species, and there is no duty to remove them. The Department also recommends that Cocos palms should be removed and replaced with native palms such as the Alexander Palm.

I am of the view that the Applicants should have greenery returned to them so far as practicable. I am unable to make an order against the gardener Mr. Clayton who admits to the mistake. The body corporate should investigate whether an insurance claim can be made on Mr Clayton’s professional cover.

I shall now seek submissions from all owners in this matter, perhaps with consideration of a suitable species of tree or shrub for replacement purposes, the proposed height and number, and the costs of purchase and planting which may have to be met by the body corporate.

I also seek further information from the Applicants with regard to the actual number of trees cut down (there is a discrepancy between the Applicants’ ‘four’ and Mr Clayton’s ‘two’; whether umbrella trees ( also referred to as rubber trees by Mr Clayton) were removed from outside any other lots, eg Lot 5 as proposed by Mr Nicoll; and what benefits these trees gave to the Applicants. A plan of the grounds and the trees concerned would also be helpful.

I now propose to make some general comments which I hope will be helpful about the power of lot owners in a community title scheme governed by the Standard Module.

I am satisfied in this application that the Applicants have not been kept informed, and feel that they have no control on the actions of the body corporate. I note that the Applicants do not know who the Secretary for the scheme is, since they have not received the minutes from the AGM of 2005. However, I note that Mr Nicoll says that Mr Somogyi is on the committee.

In a scheme of only five lots, where there are in effect 4 different lot owners, all of those owners should be on the committee. The required minimum for a committee is 3 with a maximum of 5. Whilst Lots 1,4, and 5 have three votes at a general meeting, Vassin Pty Ltd would have only one vote on the committee, and Mr and Mrs Nicoll, as lot owners of Lot 5, would also have only one vote on the committee, since committee nomination is per lot owner, and not per lot. Co-owners may only sit on the committee if at an annual general meeting, the body corporate has been unable to fill all the executive committee positions, that is chairperson, secretary and treasurer, from amongst other lot owners. A lot owner may nominate a family member to sit on the committee in his or her place. Therefore Mr Meyer, Mr Somogyi, Mr Nichol and Mrs Nichol as nominee for Vassin Pty Ltd could all be on the committee with one vote each.

There is no set number of meetings which should be held by the committee, but this Office encourages active participation and regular meetings. The body corporate manager’s role is to be instructed by the committee and not the other way round. The committee must call a general meeting annually, and the legislation requires that certain "statutory motions" are put, for example, the body corporate needs to check its insurance, approve contributions to the administrative fund and sinking fund, and look at the past years’ accounts. Any general meeting held outside an annual general meeting is an extraordinary general meeting. The committee or 25% of lot owners can call an extraordinary general meeting, and 21 days notice is required to be given to all lot owners.

The committee has a spending power of $625, but cannot make a decision which alters the rights, privileges or obligations of owners without putting that proposal to a general meeting. (section 26 Standard Module). It may well be that a committee decision, if one was made, to remove shade trees without replacement, would be altering the privileges of the owners who had the benefit of the shade.

The Applicants therefore have power in this community titles scheme, and should take steps to bring breaches of by-law to the committee’s notice. A committee is obliged to send By-law Contravention Notices to offenders in accordance with the legislation, and a failure to remedy a by-law breach can result in a fine in the Magistrates Court or an enforceable order from this Office. Information is available on these procedures from the Information Service on 1800 060 119 or from the website on www.bccm.qld.gov.au

Number of Scheme:	22150
Name of Scheme:	La (Le) Lagon
Address of Scheme:	6 Aquila Court MERMAID WATERS QLD 4218

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

La Lagon [2006] QBCCMCmr 740 (20 September 2006)