Donilla [2007] QBCCMCmr 128 (7 March 2007)

Last Updated: 12 March 2007

REFERENCE: 1032-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20331
Name of Scheme:	Donilla
Address of Scheme:	22 Chaplin Crescent, Oxenford

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Cheryl Fleming, the owner of Lot 2

I hereby order that Jaimmie Hunter, the owner of Lot 1 must provide access to Lot 1 to Cheryl Fleming, the owner of Lot 2 and her agents or contractors for any reasonable purpose in connection with utility infrastructure on Lot 1 or to be laid on the Lot associated with the supply of electricity to Lot 2.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1032-2006

"Donilla" CTS 20331

Application
This application is by Cheryl Fleming, the owner of Lot 2 (applicant) against Jaimmie Hunter, the owner of Lot 1 (respondent). The applicant is seeking an order to have reasonable access to the electricity power board located on Lot 1. The applicant states that the respondent has installed a locked gate which prevents access to the power board for Lot 2.

Jurisdiction
"Donilla" is a community titles scheme under the Body Corporate and Community Management Act 1997 (BCCM Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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 claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (section 276(1), BCCM Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2), BCCM Act ).

Submissions
In accordance with the Act, submissions were called and a copy of the application was provided to the respondent who did not make submissions.

Further Information
In accordance with the investigative powers stated in section 271 of the BCCM Act, by letter dated 15 February 2007 I requested that the applicant and the respondent provide me with photographic and/or diagrammatic material showing the location of the electricity board, the fence and gate in relation to the boundary of the lots by 22 February 2007.

The applicant provided a sketch showing the approximate position of the power board, the fence and the gate. The respondent did not respond to my request.

Determination
The sketch provided by the applicant indicates that the power board is positioned on the southern side of the building on Lot 1; that a fence surrounds most of Lot 1; and that a gate is positioned within Lot 1 between the southern side of the building and a boundary fence. The applicant says that as she cannot access Lot 1, she cannot access the power board which would be necessary should the electricity cut off in Lot 2 or should she want to install new lights etc within her Lot.

The applicant has stated that the electrical switchboard servicing Lot 2 is located within Lot 1 as defined by the plan of subdivision. GTP 2634 was registered by the registrar of titles on 9 May 1991 under the Building Units and Group Titles Act 1980 (BUGT Act). Section 17 of the BUGT Act provides:

17 Services

In respect of each lot there shall be implied--

(a) in favour of the proprietor of the lot and as appurtenant thereto, easements for the passage or provision of services (including water, sewerage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil, telephone, radio and television) through or by means of any pipes, poles, wires, cables or ducts to be laid down or erected or which are for the time being existing in or over the parcel to the extent to which those services are capable of being used in connection with the enjoyment of the lot;

(b) as against the proprietor of the lot and to which the lot shall be subject, easements for the passage or provision of services (including water, sewerage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil, telephone, radio and television) through or by means of any pipes, poles, wires, cables or ducts to be laid down or erected or which are for the time being existing within that lot as appurtenant to the common property and also to every other lot capable of enjoying such services;

but the easements conferred by this section shall not be exercised by any proprietor in such a manner as unreasonably to prevent any other proprietor from enjoying the use and occupation of the proprietor’s lot and the common property.

Section 18 of the BUGT Act provides that "All ancillary rights and obligations reasonably necessary to make easements effective shall apply in respect of easements implied or created by this Act".

While the BCCM Act has applied to this scheme since 13 July 1997 (section 330, BCCM Act), the section 17 easements continue to apply (section 331(3)(b), BCCM Act).

The applicant has shown that there is utility infrastructure within Lot 1 associated with the supply of electricity to Lot 2. Section 17 of the BUGT Act provides implied easements benefiting the applicant and burdening the respondent. Section 18 provides supplementary rights which in my view include rights of access. The rights and obligations established by the BUGT Act continue to apply to this scheme. Consequently, the applicant has a right to access Lot 1 for the purpose of dealing with the electrical infrastructure on Lot 1 associated with the supply of electricity to Lot 2.

The applicant has not specified when the respondent has denied her access to Lot 1. She states generally that the locked gate prevents her from accessing the Lot. The locked gate does not itself demonstrate the existence of a dispute about access. There should also be an explanation of the instance or instances where the respondent actually refused to allow the applicant to access his Lot. However, given that the respondent has declined to make any submissions on the application and has not contested the outcome sought, I am satisfied that it is appropriate that an order be made in the terms of the benefit and burden created by the implied easements with appropriate provision for agents or contractors of the applicant also being able to access Lot 1.