Oliver Court [2006] QBCCMCmr 758 (27 September 2006)

Number of Scheme:	21019
Name of Scheme:	Oliver Court
Address of Scheme:	QUEENSLAND

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

I hereby order that:

• The timber plank shelf attached to the dividing fence between lots 1and 2 be removed, and

• All cardboard and plywood which has been fixed to and above the dividing fence between lots 1 and 2 be removed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0442-2006

"Oliver Court" CTS 21019

Application

Kevin and Sandra Greig, the owners of Lot 2 (the applicants) have sought orders that:

Jurisdiction

Oliver Court CTS 21019 is a 4 lot scheme under the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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)).

Grounds

The applicants state as follows:

"On 21 January 2006 we advised AD Body Corporate that the owner of unit 1 had erected a timber plank shelf supported by the dividing wall fence between units 1 and 2. This shelf is wedged between the top of the retaining wall and the bottom of the timber palings, and encroaches 5 cm on our side of the common dividing wall fence.

This shelf supports numerous large pot plants etc. We are concerned that damage will result due to this weight.

The above is in contravention of the Body Corporate by-laws.

During April 2006 the owner of Unit 1 randomly attached large pieces of recycled cardboard and plywood along and above the top of the dividing fence between units 1 and 2. This is defacing the common property structure. Additionally, this is in close proximity to the exterior gas hot water systems. This also is in contravention with the Body Corporate by-laws."

The applicants attach a copy of the by-laws, correspondence and photographs.

The correspondence provided by the applicant shows letters from the body corporate manager dated 11 January 2006, 17 February 2006 and 14 March 2006 advising the owner of lot 1 that:

"An occupier of a lot must not, without the Body Corporate’s written approval mark, paint, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the Common Property."

Further correspondence dated 24 March 2006 from the body corporate manager (not on letterhead) advises that the respondent has been written to regarding the shelving on 6 different occasions and that based on their inspection, AD Body Corporate regards the shelving as illegal and worthy of complaint. They advise the shelf must be removed within 14 days or the matter will be taken to this office.

The photos provided by the applicants include photos of cardboard leaning against the fence, one assumes to increase the height and opacity of the existing structure.

There is also a copy of a letter dated 26 January 2006 signed by the owner of lot 4, suggesting to the body corporate manager that the shelving should be removed.

Submissions

Submissions were received from the respondent and one other owner. The other owner is chairperson of the scheme.

In the chairperson’s view, the shelving and pots do not pose a damage threat to either the brick or timber portion of the fence. He does not see termites as a risk. He implies that neighbours should be more tolerant of each other and provides examples of what he regards as acceptable alterations to common property. He states in relation to the letter from the owner of lot 4, that she would not really understand the issue.

The respondent has provided a substantial amount of material in response. This includes 12 photos, some showing the pots on the shelves and larger pots at ground level. She says the shelf is treated for termites and will not damage the fence. She states that the shelf has the correct permission of "Body Corporate AMD, in the city". She says there is adequate water drainage.

She denies ever receiving the letter of 24 March 2006, where it was stated she had been contacted 6 times. She says that when the alleged author of that letter visited, he declared the shelf safe.

Beyond the above, the respondent seeks to make her own complaints against the applicant. These complaints do not address the substance of the application I have before me.

Response to Submissions

The applicants’ response is somewhat drawn into addressing irrelevant issues.

Their relevant responses are that the applicant has no proof that the timber used is termite treated. They do not have a copy of the correspondence that authorised the respondent to build the shelf.

Determination

Fences between adjoining lots are addressed under Section 311(3) of the Act as follows:

"... ... for the Dividing Fences Act 1953, owners of adjoining lots included in a community titles scheme are taken to be the owners of adjoining land........

Therefore provisions of the Dividing Fences Act 1953 apply to fences between lots. Ordinarily the body corporate will be responsible for a fence that forms the perimeter of the scheme, this responsibility being shared with any neighbouring owner outside the scheme. However, adjacent lot owners within the scheme will ordinarily share responsibility for fences between their respective lots. Further, if the fence is instead between the lot and common property then the lot owner will ordinarily share responsibility for the fence with the body corporate, as though the body corporate was the owner of the common property (Act, 311).

There is no specific requirement that each adjoining owner, for example, paint their own side of the fence but this may be agreed between adjoining owners or may be the result of a specific order.

Under a standard format plan the fences generally approximate the boundaries of the lot and adjoining owners will have responsibilities under the Dividing Fences Act 1953.

An adjudicator has exclusive jurisdiction to make an order that is just and equitable to resolve a dispute between owners in a body corporate about the exercise of rights or powers, or performance of duties, under the Body Corporate and Community Management Act or the community management statement (Act 228, 229, 276). This dispute is clearly within this exclusive jurisdiction to the extent that it concerns a dispute between lot owners in relation to an existing structure and allegations of encroachment into another’s lot. It involves consideration of the provisions of the Body Corporate and Community Management Act 1997. I have therefore decided it is appropriate for me to determine this dispute, even though it may also require consideration of some of the provisions of the Dividing Fences Act 1953 which are normally considered in disputes before a Magistrates Court or Small Claims Tribunal[. ]

Under the Body Corporate and Community Management Act, owners are generally responsible for maintenance of their own lot and the body corporate is generally responsible for maintenance of common property (Standard Module 109, 120). Based on the survey plans provided, parts of the fences are wholly within the individual lot boundary but at least parts of the fence have the face of the wall on the boundary between the lots. The boundary is formed by survey pegs rather than a line along the centre of the fence so it is not possible to clearly say that the fence is actually erected exactly on the survey lines. Being a structure that effectively forms a boundary between a lot and common property, that is partially on one lot and partially on another, issues arise as to the extent to which actions of the owner of lot 1 may have an impact on the fence, which is also partly within lot 2.

From the photos, it is apparent that the board, on which the top pot plants sit, is held in place by:

It is quite apparent that should the upright timber located within lot 1 be removed, upward pressure would be applied to the base of the timber picket portion of the fence.

The upright timber supporting the shelf on the respondent’s lot appears to rest on either a paved courtyard or soil. This does not present a sufficiently stable anchor to protect against either accidental dislodgement of the supports or their subsidence into the soil. The resultant upward pressure on the picket portion of the fence will act to accelerate its deterioration and bring forward the point in time where costs will need to be incurred for repairs.

Importantly also, the shelf itself is intruding into the applicants’ lot. While it is difficult to see how an encroachment of this depth could cause a problem to the applicant in this position, it remains that the applicants are entitled to exclusive use and enjoyment of their lot.

There are alternate methods of shelving the plants available to the respondent which do not involve attaching shelving to the fence. There appears to be no compelling argument that the respondent can only adopt this method to effectively display and tend her plants. I will order that the shelf be removed.

I turn now to the question of the cardboard and ply-board being used by the respondent as a privacy screen.

Section 120(1) of the Standard Module states that: "An occupier of a lot included in the scheme must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition". The partitions leaning against the fence between lots 1 and 2 are clearly visible to lot 2, and that is the respondent’s point. Further they are irregular and ugly in appearance and cannot be regarded as tidy in anyone’s opinion. I will order they be removed.

If the respondent wishes to erect a screening fence, she should approach the Body Corporate for permission to depart from the current standard fence within the complex and negotiate with the applicant in relation to the sharing of costs. Any work done should be done in a professional and workmanlike manner.

As both the applicant and respondent might imagine, feuds of this nature often find their way to this office. The making of this order will achieve nothing in diverting any future disputes between the parties and may well lead to a spate of tit for tat applications flowing through this office. I can only urge both parties to exercise both tolerance and thoughtfulness in their dealings with each other and to resist the temptation to abandon the "give and take" that is necessary in a communal living environment.

This is a single dispute that requires consideration of both the Body Corporate and Community Management Act 1997 and the Dividing Fences Act 1953 [. ]The intention of sections 228, 229 and 276 of the Body Corporate and Community Management Act 1997 appear to be that disputes about provisions of the Body Corporate and Community Management Act 1997 be decided by an adjudicator. Following Greenhill Homes Pty Ltd and Ors v Domestic Building Tribunal and Ors, Supreme Court of Victoria, 4420 of 1998, Byrne J, 4 August 1998 (unreported BC 9804032), jurisdiction is not lost simply because provisions of another Act also need to be considered. The present dispute is a single justiciable controversy as referred to in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 163 ALR 270 and could not be easily separated into matters determinable in different jurisdictions.

a)	The timber plank shelf erected by the owner of lot 1 be removed as this shelf is supported by the dividing wall and fence between unit a and 2 and if not dismantled soon, damage will occur to the common dividing wall;
b)	The owner of unit 1 remove all recycled cardboard and plywood which has been fixed to and above the courtyard dividing fence between lots 1 and 2.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Oliver Court [2006] QBCCMCmr 758 (27 September 2006)