Penrith Park [2007] QBCCMCmr 249 (30 April 2007)

Last Updated: 22 May 2007

REFERENCE: 0910-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9133
Name of Scheme:	Penrith Park
Address of Scheme:	57 Park Road Slack Creek QUEENSLAND 4127

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

Ms Denise Thomason, the Owner of Lot 5

I hereby order that the application for an order for: Replacement of lattice (same style) painted Brunswick Green and installed by a qualified person measures 1.8m x 1m. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0910-2006

"Penrith Park" CTS 9133

The Penrith Park community titles scheme (Penrith Park) consists of six lots and common property. The community management statement (CMS) for Penrith Park 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 Units Plan 6082.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Denise Thomason, owner of Lot 5 (applicant) on 8 November 2006. The applicant sought orders against Denise Neilson, occupier of Lot 6 (respondent) in the following terms:

Replacement of lattice (same style) painted Brunswick Green and installed by a qualified person measures 1.8m x 1m.

PROCEDURAL MATTERS

On 19 December 2006 the Commissioner’s Office conducted a conciliation session between the applicant and the property managers for Lot 6 (representing the owner of Lot 6). I understand that an agreement was reached at that conciliation and the application was put on hold for one month to enable the parties to implement the conciliation agreement. Unfortunately it seems that this did not resolve the dispute and the application proceeded.

Under section 243 of the Act, a copy of the application was provided to the respondent and the owner of Lot 6, with an invitation to respond to the matters raised in the application. A submission was made by the respondent. The owner of Lot 6 declined to make a submission. The applicant inspected the submission and made a written reply.^[1]

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

MATTERS IN DISPUTE

The application relates to the lattice and fence between Lot 5 and Lot 6. The facts of the dispute, as outlined in the application, submission and reply to submissions, can be summarised as follows.

On 2 September 2006 the applicant says she heard hammering in Lot 6 and the next day discovered a folding clothesline had been attached to the Lot 6 side of the fence between Lot 5 and 6 and over the fence into Lot 5. The applicant says the clothesline pushed the lattice on the inside of her fence about two inches off the fence and against a corner post. She says this caused damage consisting of five breaks and three sections where the lattice has pulled apart.

The applicant says she immediately advised the tenant in Lot 6 (the respondent) of the problem and that the respondent she would have the workman involved rectify the situation. This did not occur. Later the respondent apparently said the problem had anything to do with her.

On 6 and 22 September 2006 the applicant wrote to Heritage Real Estate, the property manager for Lot 6, to ask for the removal of the clothesline. She said she would install and repaint the lattice if she could have access to the Lot 6 yard and if Lot 6 paid for the lattice (with a quote for $107.60 from ‘Lattice Alone’ for replacement lattice referred to). The property manager visited the site on 3 October 2006 and said she would organise a maintenance person inspect the situation.
On 18 October 2006 the applicant advised she was withdrawing her offer to fix the problem because of the lack of action. She says the respondent has unreasonably interfered with the property of Lot 5, contrary to section 167 of the Act. She claims the negligent installation of the clothesline on the fence created a hazard and damaged her property. She says the dividing fence between the two lots is the responsibility of the owners and the tenant must seek permission of both owners before undertaking any structural changes. She says she wants the damaged lattice removed and similar lattice to be painted and installed by a professional. The application includes a quote dated 27 September 2006 from ‘Alex’s Fencing’ for $225 to replace the lattice.

The submission from the respondent is somewhat unclear. She says that a person named ‘Mark’ who lives nearby had moved her clothesline. She indicates that he pulled down her clothesline even though she told him not to in front of ‘Steve’, another owner who was there at the time. Later she went inside and, on hearing a noise, went outside to discover Mark was putting the clothesline up on the fence. She disputes the applicant’s version of events and says the applicant was not home at the time and that only a drill was used and not a hammer. She says that as a tenant she had no right to give permission ‘to do anything’ without approval from the owner or the property manager and she did not give any permission. She says she told the applicant she did not give anyone permission to move the clothesline and that she could not see any break in the lattice. When she got a bill from the applicant she says she took it to Mark who refused to pay. She also says Mark refused to move the clothesline which she says she is now unable to use.

The respondent’s submission also includes an email from a Len Bale, a maintenance person, to the property manager for Lot 6. The email claims there is "absolutely no damage" to the lattice from the fence or clothesline. It does indicate general deterioration from the weather in the form of parting of the lattice strips and some cracking of the strips. The email claims green paint, which has been there for a long time, has been painted over and in the cracks and that this would not be the case if the cracks were caused by the clothesline attachment or any fence movement.

The applicant’s reply to submissions includes a letter from Stephen Donald, the Body Corporate Chairperson who is the ‘Steve’ referred to by the respondent. This letter says he asked Mark Grady, a neighbour who he says was a friend of the respondent, to quote on the construction of a new fence for Lot 6. They entered Lot 6 with the respondent’s permission. He says he told Mark not to include the cost of removing and replacing the clothesline as it was the owner’s responsibility. He also says he told the respondent that she should arrange with the property manager to remove the clothesline and suggested she ask the applicant for permission to move it to their shared fence. He indicates that he understands the clothesline was later moved by Mark.

The applicant refutes Len Bale’s assessment regarding the lattice damage and claims that, as he had not been in contact with her, he could not have accessed her yard to view the lattice. She provides a letter from ‘Lattice Alone’ saying that on 21 February 2007 it inspected the lattice panel on Lot 5, but with no assessment from the Lot 6 side. This letter comments "There is cracking of the lattice, which has occurred for reasons unknown." and "...it could be suggested that the damage may have been caused by the clothesline pushing on the lattice." They had apparently originally quoted over the telephone for the repair work in September 2006.

In response to a request for further information, the applicant provided photographs of the lattice. She says she first became aware of damage in early September, and the clothesline was removed in October. She advises the lattice was installed by her some 10 years ago, with Body Corporate consent, and 5-6 years ago was taken down by her and repainted as part of repairs to the fence.

JURISDICTION

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.^[2]

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)).

DETERMINATION

The key issues for consideration in this matter are whether the apparent damage to the lattice on the fence between Lot 5 and 6 was caused by the relocation of the clothesline in Lot 6 and, if so, who is responsible for the cost of any repairs to the lattice.

Responsibility for the fence and lattice

The general responsibilities for maintenance in a community titles scheme are provided in sections 109 and 120 of the Standard Module. Under section 120 an owner must maintain their lot in good condition. Under section 109 the body corporate must maintain common property in good and structurally sound condition and, in a building format plan scheme (which this is), is also responsible for certain boundary and structural items. However, section 109(3)(a) provides that the body corporate is not responsible for maintaining any fixtures or fittings installed by an occupier for the occupier’s own benefit.

Penrith Park was first registered in April 1984 under the Building and Group Title Act 1980 (BUGTA), which applied to schemes prior to the commencement of the current Act. The CMS for Penrith Park was registered on 15 July 2000 under the Act and states that the by-laws for the scheme are taken to be those in effect as at 13 July 2000. Two changes to the by-laws for the scheme were registered on 15 May 1984, and so the by-laws for the scheme are those contained in Schedule 3 of BUGTA combined with the alterations and additional approved in May 1984.^[3]

Of most relevance is the second change which added a new by-law (By-law 62) which grants lot owners the exclusive use to specified car spaces and courtyards^[4]. The by-law includes that "...each proprietor shall be responsible for the performance of the duty of the Body Corporate Section 38(1)(b)(i) in respect of his courtyard or courtyards." There is currently no section 38(1)(b)(i) in BUGTA but, prior to a series of amendments to BUGTA, this section (which is similar to the current BUGTA section 37(1)(b)) formerly provided that "a body corporate shall - properly maintain and keep in a state of good and serviceable repair - the common property including where practicable the establishment and maintenance of suitable lawns and gardens thereon".

Both Lot 5 and 6 have been granted exclusive use to a common property courtyard under By-law 62, and the fence in question divides these courtyards. Section 123 of the Standard Module provides that the owner who benefits from an exclusive use by-law is responsible for the maintenance and operating costs of the exclusive use area, unless otherwise specified in the by-law. Accordingly, under both the conditions of the by-law and by virtue of section 123, the owners of Lots 5 and 6 are responsible for the maintenance of their exclusive use area courtyards.
There is a question whether that responsibility extends to the boundary fence which creates the exclusive use area. In this regard an Adjudicator in a previous dispute^[5] has noted:

"If the fence primarily benefits the exclusive use area of an individual owner rather than the body corporate as a whole then maintenance of that fence would be part of the "operating costs" of that exclusive use area. This means that the individual owner, not the body corporate, should be responsible for maintaining the fence. This applies irrespective of whether the fence in question is technically located just within the area, just outside the area, or on the boundary of the exclusive use area."

Accordingly, the maintenance of a fence that divides the exclusive use areas of two lots will normally be the responsibility of both owners that benefit from the fence.^[6]

In this case it seems the lattice was installed by the applicant to the inside of the fence for the benefit of her own lot. Under section 123(3) of the Standard Module a lot owner can only make improvements to an exclusive use area if it is authorised by the exclusive use by-law or the Body Corporate, and the applicant indicates that she had necessary approval. In the circumstances, I am of the view that while the owners of Lot 5 and 6 share responsibility for maintaining the fence, only the applicant is responsible for the lattice installed on the inside of the fence within her lot.

Cause of the damage

The application states that the lattice on the applicant’s fence is damaged but she initially provided no evidence of this. Damage is barely perceptible in the photographs later provided by the applicant on request, however on the basis of the comments provide in the various submissions I do accept that there is some minor damage or deterioration to the lattice.

The applicant claims the damage was caused by the installation of the clothesline on the fence. However she has provided scant evidence to substantiate this. The clothesline was in situ for one to two months. In her reply to submissions the applicant provides a statement from a tradesperson based on an inspection undertaken more than five months after the clothesline was installed on the fence and some four months after it was removed. The statement does not support the applicant’s claim regarding the cause of the damage but rather says the damage occurred for ‘reasons unknown’. The statement is very tepid in regard to the potential that the damage was caused by the clothesline pushing on the lattice. Conversely, the property manager’s tradesperson seems adamant that the damage was not caused by the clothesline and gives plausible reasons for this.

Conclusion

I am not satisfied that the applicant has demonstrated that, on the balance of probabilities, any damage to the fence was caused by the installation of the clothesline. For that reason I so not consider that there is sufficient basis to order that the respondent be responsible for repairing any damage to the lattice. As the lattice was installed by the applicant on the inside of the fence, it would seem that she is solely responsible for any necessary repairs to the lattice.

I would also comment that I am also not convinced that the respondent was responsible for the installation of the clothesline. However, if the circumstances occurred as she described them, the appropriate course of action for the respondent would have been to contact the property manager immediately to inform them of the ‘unauthorised’ relocation of the clothesline, along with the advice from the Body Corporate Chairman, and leave it for the owner of Lot 6 to exercise his responsibility for the fence and clothesline and determine whether he wished to move the clothesline.

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^[1] See sections 246 and 244 of the Act respectively

^[2] See sections 227, 228, 276 and Schedule 5 of the Act
^[3] See section 339(5)(a) of the Act and section 30 of the BUGTA.

^[4] Sections 170 to 178 of the Act provide for exclusive use by-laws, which give owners exclusive rights and enjoyment of common property or a body corporate asset.
^[5] Toohey D at p.2 in The Gardens [2004] QBCCMCmr 351 (13 July 2004)

^[6] It is noted that the fence in question only divides one area of common property from another area of common property, and so the principles of the Dividing Fences Act 1953 do not apply. Section 311 provides for the application of the Dividing Fences Act 1953 to community titles schemes but see Adjudicator Toohey’s comments in San Lucas Villas [2004] QBCCMCmr 498 (22 October 2004) at p.2.