55 Douglas Street [2007] QBCCMCmr 10 (8 January 2007)

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

I hereby order that the application for orders:

1. The prevention of the removal of 3 palms, 2 of which are in front of my unit-home.

2. That the timber issue be resolved after consideration of the argument in the attached letter 31.07.2006 to Stephanie Peech (Teys). She has not yet responded.

3. That the motion referring to the shadecloth be voided.

is dismissed.

I further order that the Body Corporate for 55 Douglas Street shall not remove palms on common property pursuant to committee Resolution 1 of 8 September 2006 unless and until a motion or motions regarding plantings to replace the palms has been considered at a general or committee meeting, regardless of the outcome of that motion or motions.

I further order that the body corporate manager shall provide a copy of this order to all owners.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0810-2006

"55 Douglas Street" CTS 4294

The 55 Douglas Street community titles scheme (55 Douglas Street) consists of five lots and common property. The community management statement for 55 Douglas Street indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Unit Plan 11282.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was lodged by Susan Pepper, owner of Lots 2 and 3 (applicant) on 4 October 2006. The applicant sought final orders against the Body Corporate for 55 Douglas Street (respondent) in the following terms:

1. The prevention of the removal of 3 palms, 2 of which are in front of my unit-home.

2. That the timber issue be resolved after consideration of the argument in the attached letter 31.07.2006 to Stephanie Peech (Teys). She has not yet responded.

PROCEDURAL MATTERS

Following a limited opportunity for the Body Corporate to respond to the interim order application, on 26 October 2006 I issued an interim order in the following terms:

I hereby order that the Body Corporate for 55 Douglas Street shall not remove any palms on common property pending final determination of this application.

I further order that the body corporate manager provide a copy of this interim order to all owners.

I further order that the application for interim orders is otherwise dismissed.

I further order that this interim order has effect for a period of three months from the date of this order.

After the issuing of the interim order the Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. Unfortunately all parties did not agree to conciliation.

Under section 243 of the Act, a copy of the application (which included additional material submitted by the applicant) was provided to the Body Corporate and to all owners, with an invitation to the committee and all owners to respond to the matters raised in the application. In addition to the submission made on behalf of the Body Corporate in response to the interim application, a submission was made by one other owner. The applicant inspected the submissions received and made a written reply (see sections 246 and 244 of the Act respectively).

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

JURISDICTION

I am satisfied that this is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 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

(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)).

MATTERS IN DISPUTE

This application disputes committee resolutions regarding maintenance in the scheme. As outlined in my interim order, the facts of the dispute can be summarised as follows.

The applicant says that on 20 July 2006 she received a ‘Flying Minute’ dated 13 July with three motions and apparently with only a few days to respond. Voting was not declared until 8 September 2006 and showed the motions passed with three votes in favour and one against. The applicant claims she has contacted the body corporate manager (BCM), Stephanie Peech of TEYS Strata, on several occasions regarding her concerns with these issues – before and after she received notification of the voting results - but was not satisfied with the response.

The first motion agreed to remove three palms from the driveway and trim other palms, at a quoted cost of $385. The applicant claims this would affect her privacy and expose her to traffic, and also affect the ‘pleasant aesthetics’ on that side of the building. She says the palms are old with an extensive root system which requires expensive mechanical removal. She says the removal is unnecessary, that she pruned the plants recently, and that while the palms have a lean, it is not significant and the plants are stable. The applicant disputes that palm fronds have interfered with cars, and says only one other car uses the 3 metre wide driveway. In addition, she notes the palms are expensive to replace and it will be difficult for new plants to survive water restrictions.

The second motion approves the removal of timber on common property at the rear of the scheme. The timber is the remains of a replaced pergola which was apparently retained to build a bin enclosure sought by the owner of Lot 1. The applicant proposes that the timber only be removed if the owners of unit 1 and/or 5 pay for its removal, because its removal was included in the quote for the pergola, and that they pay for new timber if they later want the bin enclosure built.

The third motion approves the ‘repair or replacement’ of shade cloth which has been damaged by overgrown palms along the driveway. The applicant says the quote for $786.50 for a new shade cloth covers the whole side of the building which is beyond the scope of the motion. She also disputes that a heavy shade cloth is required on that side of the building which "...needs all the sun it can get...". She says the piece in dispute has a couple of barely visible holes and so replacement is unnecessary, but says if it is replaced the quoted price is excessive.

In amending her application after the interim order was issued, the applicant provides additional background material and expansion of her arguments. She notes that she has received advice from a Brisbane City Council horticulturalist who agreed that it would be difficult to establish new plantings in the current drought conditions and unless the root system was mechanically removed. She argues that mechanical removal is expensive and would destroy surrounding plants.

She also notes that much of the shade cloth is not visible, adds little value and that the holes are generally not visible. Accordingly she suggests that the shade cloth just be removed.
In addition the applicant expresses shock that the timber has already been removed. It is unclear when this occurred but the invoice for $159.50 was paid on 14 September 2006. She claims this was done by a different company than named in the quote submitted, and was progressed in the knowledge that the applicant intended to dispute the resolution. The applicant suggests that the BCM should reimburse the Body Corporate for the work.

The submission lodged by the Committee in response to the interim application says written and verbal complaints about garden maintenance were made by two owners. The issues were referred by the BCM to the applicant, who is the ‘onsite contact person’. As they were not resolved the issues were put to a committee vote, with all owners on the committee. The postal vote sought a response within seven days but there was a delay in ascertaining a response from one owner.

In regard to the applicant’s objections, the Committee states that "The issue of privacy/ replacement of plants was felt to be the only point relevant to the current debate, and therefore the motion was amended to reflect this before the resolution was forwarded to owners...". The amended resolution included the statement "Any resulting privacy issues are to be resolved by the planting of appropriate shrubs." It is not clear whose decision it was to amend the resolution.

The submission states that the timber has been removed, and the shade cloth issue is to be referred to the Annual General Meeting (AGM) because the quotes obtained are beyond the committee expenditure limit. The submission also states that the removal and trimming of the palms has not been carried out yet, but that the work on the plants and the shade cloth is necessary for the proper maintenance and appearance of the complex.

The submission received by the owner of Lot 1says argues there was a three to one vote in favour of removing the palms. The submission includes photographs indicating that the lean of the palm means that a garden tap is hard to reach, that she can’t open the door to her second bedroom door because the palm is in the way, and that the palm fronds scratch her car when she backs out of her garage. It also suggests that despite trimming, palms cause problems for the Lot 5 carpark. The submission also notes the shade cloth issue needs to be discussed a meeting.

In her reply to submissions the applicant argues that there is sufficient clearance to enable the bedroom door in Lot 1 to be fully opened. Moreover she says it was a condition of Lot 1 being allowed an air conditioner that this door is left open but this hasn’t occurred. She also disputes that the palm fronds are anywhere near the owner of Lot 1’s car when leaving her garage, and claims that the tenants in Lot 5 have said the palm causes no impediment to them.

DETERMINATION

The issue for consideration in this application is the validity and reasonableness of the three motions purportedly passed on 8 September 2006 outside a committee meeting.

Palms

It is within the power of the Body Corporate to remove plants and trees on common property, even if not all owners agree, as common property must be maintained by a body corporate in good condition for the benefit of all lot owners^[1]. Moreover, owners do not necessarily have a right to privacy screening by plants. There is no suggestion from the applicant that there is anything in authority local laws and State vegetation laws that would prevent the removal of the palms.

The Body Corporate does not appear to have fully considered the issue of privacy, or costed replacement planting as part of the proposal. As noted in my interim, the attempt to amend the resolution in the record of voting is inappropriate and, while it does not invalidate the resolution, the additional wording does not change the Resolution that the committee voted on and agreed to.

Similarly I have some concerns that the Committee has not really explained why the palms should be removed rather than simply trimmed. It does not seem any expert advice has been obtained regarding the stability or maintenance of the palms, or that the opinion of the property manager of Unit 5 that it would be hard to cut the palms back because of their lean has been corroborated by an arborist or gardener.

However, I do note that one palm appears to present an obstruction to the bedroom door of Lot 1. Although it is disputed whether this prevents the door being opened or not, even if the door can be opened and even if all the fronds on that side of the palm are regularly removed, the proximity of the palm to the door does appear to impede access to the door and potentially present a hazard. Accordingly it does not seem unreasonable for the owner of Lot 1 to seek the removal of that palm.

From the material provided, I am not convinced that the palms are excessively hindering or damaging cars in the scheme or that any impact on cars could not be addressed by regular pruning. However I acknowledge that some owners may not consider it desirable for palms fronds to be extending far out into the (albeit wide) driveway.

Timber

As discussed in my interim order, while the timber has already been removed it does not appear the applicant objects to the removal of the timber as such, but rather is concerned with the cost of its removal and the cost of timber in any later building project.

As some two years have passed since the bin enclosure proposal, I do not consider it is unreasonable for owners and tenants to want the timber removed (whether it presents a termite hazard or not) rather than leaving it there indefinitely in case the proposal is revived at some later date. The cost of any bin enclosure should be considered if and when that project is progressed.

Given that there was apparently agreement amongst owners to keep the timber, I do not consider it is reasonable to require one or two owners to pay for its removal. It is a matter for the Body Corporate as a whole if they paid in full for a quote which included a service (the removal of the timber along with the construction of a pergola) which was not ultimately provided.

As the resolution did not specify a contractor or refer to a quote or an expenditure amount, and the cost of the work was within the Committee spending limit, I do not consider the Committee was limited to any quote that may have been obtained prior to the passing of the resolution.

While a committee should normally not carry out committee resolutions until a period of seven days have elapsed after meeting minutes or the resolution passed other than at a meeting have been distributed without a notice of opposition being lodged (unless the issue is an emergency or the resolution has been ratified at a general meeting).^[2] However, that time constraint does not apply to a resolution which (in the context of this scheme) will cost less than $200 or is of a routine, administrative nature.^[3] As this resolution cost $159.50 it would appear the Committee was entitled to proceed immediately to carry out the resolution.

Finally, the Committee was under no obligation to defer acting on the resolution because the applicant had indicated that she intended to dispute the resolution. If it is otherwise legally entitled to pursue a committee or general meeting resolution, the intention to lodge or actual lodging of a dispute resolution application in respect of the resolution is not sufficient to prevent a body corporate proceeding with the resolution. A body corporate is only required to defer a resolution when an adjudicator actually orders them to do so.

For these reasons, and because there is no evidence that the BCM acted unilaterally, I do not consider there is any basis to require the BCM to be responsible for the cost of the timber removal.
Shade cloth

As outlined in my interim order, Resolution 3 is a rather general motion in that it refers to repair or replacement of the shade cloth and does not consider quotes. The motion is within the power of the Committee to resolve but, as acknowledged by the Committee, the quote of $786.50 is beyond the Committee spending limit of $625.^[4] This issue is to be considered at the forthcoming AGM, although apparently the applicant did not know this when she lodged her application. The owners will have the opportunity to consider all aspects of this issue at the AGM. The applicant can submit her proposal for the removal of the shade cloth to the AGM, if the time for submitting motions is still open. The decision at the AGM supersedes, and is not bound by, the Committee decision.

Conclusion

The applicant has presented no evidence to argue that the three resolutions declared by the Committee on 8 September 2006 are invalid. Moreover, while a body corporate must act reasonably,^[5] on balance I find no basis to determine that the Body Corporate for 55 Douglas Street has acted in a manifestly unreasonable manner when passing these resolutions.

The Body Corporate has already implemented Resolution 2 regarding timber, and its actions appear entirely reasonable in respect of that issue. The Body Corporate does not intend to implement Resolution 3 regarding the shade cloth, but will discuss it at the next AGM.

Resolution 1 is a more difficult issue. I acknowledge the concerns of the applicant and her desire to maintain foliage that will be difficult to replace. I also acknowledge her desire not to expend funds unnecessarily. However I also accept at least some of the concerns of Lot 1. While I consider that owners should have given more consideration to the alternatives to and impact of removal, they are entitled to decide that the palms should be removed. Owners have the right to make decisions collectively about common property and I do not consider their decision is so unreasonable as to warrant me to reverse it.

While I do not propose to overturn Resolution 1, I do propose to require the Body Corporate to give further consideration to the privacy impacts on the applicant and replantings to address those impacts. It is apparent from the attempt to amend this resolution that the issues of privacy and replacement plants have been accepted by at least some as valid concerns. There appears to be at least some intention that these issues be addressed with the planting of appropriate plants however this does not appear to have been the subject of specific Committee consideration.

Accordingly, I consider that the options and cost of replacement plantings should be considered by all owners, having regard to the applicant’s view that replantings will not be successful because of water restrictions and unless the root system is removed. One or more motions on the issue, submitted by the applicant and/or any other owners at a single committee meeting or general meeting, must be considered before the removal of the palms can proceed.

This issue would ideally be discussed face-to-face by owners, but that may not be possible. All owners should carefully consider the impact and cost of removing mature plants and purchasing, planting and maintaining juvenile alternatives, compared with the ongoing maintenance and other impacts of the existing plants. In light of any motions considered, it may be that the majority of owners decide not to proceed with the removal of the palms or decide to remove only some palms. However, if owners consider motions on replacement plantings at a meeting, whether or not they resolve to take specific action, the Committee will be entitled to proceed with the removal of the plants unless owners decide otherwise.

^[1] See section 152 of the Act and section 109 of the Standard Module
^[2] See section 37(1) to (4) of the Standard Module
^[3] See section 37(5) of the Standard Module
^[4] See section 103 of the Standard Module
^[5] Section 94 of the Act

Number of Scheme:	4294
Name of Scheme:	55 Douglas Street
Address of Scheme:	55 Douglas Street ST LUCIA QLD 4067

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

55 Douglas Street [2007] QBCCMCmr 10 (8 January 2007)