Palermo Lane [2007] QBCCMCmr 292 (18 May 2007)

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

I hereby order that the Owners of Lot 8, Steven and Kerry Burns, shall be entitled to retain paint on the rear and side fences and brick retaining wall of the common property courtyard to which Lot 8 is granted exclusive use, subject to the following conditions:

1. Within thirty (30) days of the date of this order any painted fences in the courtyard are repainted in a cream colour consistent with the existing awing in the Lot 8 courtyard;
2. Details of the proposed paint colour are provided to the Body Corporate Committee for its information at least fourteen (14) days prior to the painting being commenced;
3. The Owners of Lot 8, Steven and Kerry Burns, shall be responsible for the maintenance of any paintwork on the rear and side fences and brick retaining wall in their courtyard; and
4. In the event that Steven and Kerry Burns sell or otherwise dispose of Lot 8, they shall, prior to the finalisation of the sale or other disposal, reinstate the rear boundary fence to its original unpainted treated timber palings unless the Body Corporate has otherwise granted prior written approval for the retention of the painted palings.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0038-2007

"Palermo Lane" CTS 1854

Palermo Lane community titles scheme (Palermo Lane) consists of 11 lots and common property. The community management statement (CMS) for Palermo Lane 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 13831.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Stephen and Kerry Burns, co-owners of Lot 8 (applicants) on 9 January 2007. The applicants sought orders against the Body Corporate for Palermo Lane (respondent) in the following terms:

We are seeking a reversal of the committee's decisions regarding our cat being allowed to stay.

We are also seeking a reversal of the committee's decision regarding the painting of the internal rear fence which we have "exclusive use" of.

PROCEDURAL MATTERS

In January 2007 the Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. Unfortunately conciliation did not proceed.

Under section 243 of the Act, a copy of the application was provided to the Body Corporate, with an invitation to the committee and all owners to respond to the application. Submissions were made by the Committee and four owners. The applicants inspected these 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 applicants keeping a cat and painting their courtyard fence. The facts of the dispute, as outlined by the parties, can be summarised as follows.

After acquiring Lot 8 in late 2006, on 28 November 2006 the applicants received a letter from a Body Corporate Manager (BCM) advising that they had breached By-laws 5 and 8 by painting the treated pine fence and brick retaining wall, and requesting that the paint be removed urgently. The letter also noted that the applicants had a cat without approval and requested that it be relocated. Previous discussions between the applicants and a Committee member we referred to.

The applicants accept that they had a cat without approval. However on 30 November 2006 they then requested approval for their 5 year old male cat. The Committee offered approval if the cat was kept inside at night (in accordance with Brisbane City Council guidelines for responsible pet ownership (BCC guidelines)) and the cat was verified as being desexed. The applicants verified the desexing but declined to keep the cat inside. On 27 December 2006 the Committee advised that "...you have demonstrated that you are not prepared to exercise responsible pet ownership and keep the cat locked in at night and so permission is NOT granted for you to keep the cat on the premises." The applicants say the cat had bells, an ID tag and a cat door, so they feel they had taken ‘every reasonable step’ to comply with the BCC guidelines. They also query By-law 11.

Regarding the fence, the applicants argue neither By-laws 5 or 8 are relevant as the fence is in an exclusive use area under By-law 38 and maintenance is their responsibility. They say painting will maintain the fence and brighten their courtyard. On 30 November 2006 they requested approval for the painting. On 2 December 2006 the Chairperson said the besser wall could remain painted, as it is not conspicuous, but the painted orange fence palings were to be replaced with the "original natural CCA treated fence palings" in keeping with the rest of the fencing. The applicants then asked to be allowed to retain the paint until they leave the scheme. This was refused and the Committee said it would act to rectify the breach and seek reimbursement.

In January 2007 the applicants requested copies of all meeting minutes on the issue. The Secretary apparently said she was not aware of any meetings and had no minutes, and the Treasurer said only the Chairperson had correspondence. The applicants argue that the Chairperson is acting alone and outside her powers, or the Committee failed to provide minutes to owners within 21 days of a Committee meeting or to provide them on request.

The Committee’s submission says while there was a cat door in Lot 8, the previous owner used a cat run. Because of previous problems with cats, in 2001 the Committee decided to enforce By-law 11 and to give the BCC guidelines to any owner seeking approval for pets. The applicants refused to keep the cat inside at night. While the Body Corporate accepts the cat is desexed, they understand that this does not prevent fighting or spraying, which occurred regularly. Six lots have complained about cat spray, and while this may not be the applicants’ cat they say this cat has encouraged other cats. The submission also claims the cat breaches By-law 1 regarding noise.

In regard to the fence the Body Corporate says this is a boundary fence constructed in agreement with the scheme’s neighbour. Accordingly the fence is Body Corporate property. The fence was chosen to be low maintenance and blend with the environment. The Body Corporate believes the orange colour is very unattractive and creates maintenance which the Body Corporate is not prepared to take responsibility for. They say the applicants have breached By-laws 5, 14 and 34.

Three owners (two being committee members) oppose the application, and one largely supports it.

One owner said lack of knowledge of the by-laws was a poor excuse. She said that since the applicants’ cat arrived her garage smelt terrible from cat urine, there were paw prints on her car, feral cats are visiting and fighting, and long term resident possums had disappeared. Another said the Committee’s conditions on the cat were not unreasonable as the cat roamed at night and attracted other feral cats, which caused a disturbance and woke her regularly. They also said the cat was getting into garbage and spraying which caused a bad smell and potential health risk. As being neutered was apparently not preventing the spraying she argued the cat should be refused.

In regard to the fence, both these owners said the colour was unacceptable but more importantly the fence was constructed by the Body Corporate at great expense and treated pine was deliberately chosen to avoid the need for painting. While a commitment could be made to replace the fence prior to sale there was no guarantee this would be done.

In support of the applicants, another owner said his tenants were aware of various cats in the area but not this particular one, and had only heard occasional cat fights. The tenants also said they were not aware of any problem with the fence. The owner was of the view that if the applicants owned the fence they could do what they like with it.

In their reply, the applicants comment:

They also sought an inspection of the poor quality of the original fence without paintwork.

I requested further information from the Body Corporate. The response included:

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

(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 main issue for consideration in this dispute is whether the applicants were entitled to paint their courtyard fence or, if not, whether it would be just and equitable to enable them to retain the paintwork. As the applicants no longer have a cat, no determination is required on that issue. However for the information of all owners, I will make some comments on that matter.

Applicable by-laws

Palermo Lane was registered in June 1994 under BUGTA, which applied to schemes prior to the commencement of the current Act. The CMS for Palermo Lane 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. A change to the by-laws to the scheme was recorded on 21 March 1995 and so the by-laws for the scheme are those contained in Schedule 3 of BUGTA combined with the alterations and additions approved in March 1995.^[3]

In relation to the cat, the referenced by-laws are:

A Proprietor or occupier of a Lot shall not upon the parcel create any noise likely to interfere with the peaceful enjoyment of the Proprietor or occupier of another Lot or any person lawfully using common property.

Subject to Section 30(12) a Proprietor or occupier of a Lot shall not, without the approval in writing of the Body Corporate, keep any animal upon his Lot or the common property.

The mention of section 30(12) in By-law 11 is a common reference to this section of BUGTA, which provides that any by-law which has the effect of prohibiting or restricting the keeping of a guide dog by a blind or deaf person has no force to the extent of that prohibition or restriction.^[4]

The fence is in an exclusive use area covered by By-law 38:

(a) The Proprietor for the time being of each Lot in the building shall be entitled to the exclusive use for himself and his licensees of the courtyard adjacent to the Lot and bearing a number identical to the number of the Proprietors Lot for recreational and leisure purposes and any other purposes incidental to the occupation use and enjoyment of the respective Lot. It shall be the respective proprietors obligation to maintain the courtyard in a clean and tidy state and in good and serviceable repair and for all plants to be properly tended and watered and the Proprietor shall not do so or permit to be done in the courtyard any act or thing which shall, or maybe or grow to be an annoyance, nuisance, grievance, damage or disturbance of the Proprietors or occupiers of other Lots in the building. The Proprietor shall not otherwise be obliged to comply with the Body Corporate’s obligations set forth in Section 39(1)(c) of the Act.

(b) The Proprietor shall not keep any vehicle, boat, caravan or similar in the courtyard.

(c) No door, partitions or other improvements or fixtures shall be added to the courtyard without the approval in writing of the Committee of the Body Corporate. The Committee shall require as a condition of its approval if given that the materials to be used and the construction shall be of uniform type and colour for the building.

The reference to section 39(1)(c) in By-law 38 appears to intend to refer to a section of BUGTA. However BUGTA does not (and I cannot find that prior to various amendments it ever did) contain a section numbered "39(1)(c)". It seems this by-law actually intended to refer (as such by-laws commonly do) to BUGTA section 37(1)(c) which outlines the body corporate’s responsibilities for the maintenance of common property and other specified aspects of the scheme.

The other by-laws referred to in regard to the painting of the fence are as follows:

A proprietor or occupier of a Lot shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the consent in writing of the Body corporate, but this By-law does not prevent a Proprietor or person authorised by him from installing.

(a) any locking or other device for protection of his Lot against intruders; or

(b) any screen or other device to prevent entry of animals or insects upon his Lot

provided that the locking or other safety device or, as the case may be, screen or other device is constructed in a workman-like manner is maintained in a state of good and serviceable repair by the Proprietor and does not detract from the amenity of the building.

In the case of a Building Unit Plan, a Proprietor or occupier of a Lot shall not, except with the consent in writing of the Body Corporate, hang, towel, bedding or other article or display any sign, advertisement, placard, banner, pamphlet or like matter on any part of his Lot in such way as to be visible from outside the building.

No structural alternation or external addition shall be made to any Lot (including any alteration to gas, water, electrical installations ands including the installation of any air-conditioning system or work for the purpose of enclosing in any manner whatsoever the balcony or other external area of a Lot) without the prior permission in writing of the Committee.

A Proprietor shall not alter the outside appearance of his Lot nor cause to be constructed or placed to or upon any part of the Lot which can be viewed external to the Lot any materials or items unless such works or such act is first approved by the Committee of the Body Corporate.

Cat

Most bodies corporate have by-laws requiring written approval for the keeping of animals. And adjudicators are often asked to determine requests for orders which seek either to have an animal removed, or to overturn the refusal of an application for an animal. There are three factors adjudicators generally consider in regard to such applications.

The first issue is whether there been acquiescence on the part of a body corporate, such as it not taking steps to remove an existing animal over a long period of time. If a body corporate has failed to act on the by-law for some time it can lead the owner to assume implicit approval to keep the animal and it could be harsh and inequitable to then require the animal’s removal. Here there is no evidence of acquiescence as the Body Corporate apparently contacted the applicants about their cat within a short time of their purchase.

The second factor is whether a body corporate is acting in a discriminatory manner. Examples include when a committee refuses one pet but grants approval for another, or seeks the removal of an animal when there are other animals in the scheme, without any logical or reasonable basis for the distinction. Bodies corporate must treat all owners equally in enforcing by-laws. As there are and have been other cats allowed in the scheme, it would be inequitable if the Body Corporate were to refuse outright this request for a cat. The only cat currently approved is subject to conditions but these do not actually include that it is desexed and must be kept in at night. However, as it does seem that cat and the former cat in Lot 8 were kept in at night, and the situation with feral cats in the area appears to have changed or worsened, I am not convinced that these conditions are inequitable.

Thirdly, adjudicators must generally consider whether the body corporate is acting reasonably in its application of the by-laws. Although the BCC guidelines are not enforceable by the BCC, this does not mean that they cannot be used as a basis for the Body Corporate in granting approval for a pet under By-law 11. Despite the particular temperament of the applicant’s cat, the BCC guidelines demonstrate that it is not unusual for cats to be kept inside overnight. The applicants have not provided any evidence that a requirement of this nature would be cruel or otherwise unreasonable in general or in their particular instance. Given the apparent impact of cats in this scheme, I do not consider it would be unreasonable for the Body Corporate to require cats kept in the scheme to be desexed and kept inside overnight.

The difficulty in this dispute is that it is not apparent that the Body Corporate has actually made a formal decision on the applicants’ request to keep the cat. I will address that issue in due course.

Fence – responsibility for maintenance

Pursuant to By-law 38, Lot 8 has been granted exclusive use of the common property courtyard area to the rear of their Lot. The fence in question is at the rear of the courtyard and forms the western boundary between the scheme and the neighbouring property. The side fences may also have been painted but they do not seem to be the primary area of concern.

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.

Section 123(2) 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. By-law 38 says the owners must "maintain the courtyard in a clean and tidy state and in good and serviceable repair". Accordingly, under both the by-law and section 123(2), the applicants are responsible for maintaining their exclusive use area courtyard.

The next question is whether that responsibility extends to the fence which defines the exclusive use area. 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."

"This is distinguishable from the situation where the fence is a more general boundary for the benefit of the body corporate as a whole. For example, if a fence is erected to separate scheme land from adjoining land not part of the scheme and a small segment of the fence just happens to also form part of the boundary of an exclusive use courtyard then it would seem unlikely that the obligation on an individual owner to maintain their exclusive use courtyard would extend to maintaining that fence. This fence is more likely to be the responsibility of the body corporate as a whole and regulated under the Dividing Fences Act 1953 (Act, 311)."

I concur with this conclusion. In this case, the rear boundary fence was apparently built by the Body Corporate for the benefit of all owners, rather than by the applicants or for the primary purpose of enclosing the Lot 8 courtyard or to benefit Lot 8. Therefore, I am of the view that it remains the maintenance responsibility of the Body Corporate in conjunction with the adjacent property owner (pursuant to the Dividing Fences Act 1953). Conversely the maintenance of the side fences that divide the exclusive use area of Lot 8 with the courtyards of Lot 9 on one side and Lot 7 on the other would be the responsibility of the owners that benefit from the respective fences.

There is also a general principle that fixtures, fitting and improvements installed by an owner or occupier for their own benefit must be maintained by that owner or occupier.^[6]

Fence – approval for an improvement

In regard to the alleged by-law breaches raised by the Committee, the painting of a fence is not a structural alteration or addition and so By-law 14 is not applicable. By-law 34 is not relevant because it relates to the appearance of the lot and the fence is part of common property and not Lot 8. By-law 8 is similarly not relevant because it also relates to the lot, and because none of the items or actions listed in that by-law could conceivably cover painting a fence.

By-law 5 prohibits damage to common property, including painting, without the written consent of this Body Corporate. On its own this by-law would certainly require written approval to paint any part of courtyard which remains common property. However this by-law is subject to the legislative provisions on exclusive use areas and must also be read in context of the more specific By-law 38.

Under section 124(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. The next question is whether By-law 38 allows for improvements to be made. By-law 38(3) provides that "door, partitions or other improvements of fixtures" require Committee approval in writing and that approval can require conditions in respect to uniformity of type and colour of the addition.

The ejusdem generis rule of statutory interpretation provides that where a list of specific terms is followed by a general term, the general term is limited to the general category of items established by the specific terms. On that basis I consider the reference in By-law 38(3) to ‘other improvements or fixtures’ is limited to the type of improvement or fixture as the addition of a door or partition. The painting of the fence is, therefore, beyond the scope of this provision.

Accordingly, Body Corporate approval is required to paint the fence, pursuant to section 124(3). Under section 124(4) the approval must be given by a special resolution of the Body Corporate unless the value is less than $250. I have not been given the cost of the work but it may well be valued at less than $250, particularly if undertaken by the applicants themselves. If the value is less than $250 then a Committee decision would be sufficient to approve the work, unless the Body Corporate has decided that such a matter is a restricted issue for the Committee.

While they did not seek appropriate approval from the Body Corporate prior to painting the fence, the applicants did seek approval to retain the painting after they were alerted to the by-laws. I again have queries about whether the Body Corporate properly considered this request or in fact made a decision in response to this request for an improvement to the common property.

Body Corporate decision-making processes

As indicated, I have concerns regarding the approach of the Committee to decision-making in this scheme. It appears that the Body Corporate’s purported position on all aspects of the dispute was decided in the absence of any formal Committee meeting and little explanation has been given as to how and when the purported decisions of the Body Corporate were arrived at.

While I am sure that the Committee members have acted in good faith, they must all bear in mind that decisions of the Committee should be made at a formal Committee meeting and properly minuted. Neither the Chairperson nor any other Committee member has any authority to act for the Committee without the express authorisation of the Committee and the Committee cannot delegate its decision- making powers to a Committee member.

Section 27 to 37A of the Standard Module provides for committee meeting arrangements including the calling of meetings, giving prior notice of meeting to committee members and owners, attendance and quorums, voting, conflicts of interest, the requirement for full and accurate minutes to be distributed to owners within 21 days after the meeting or the passing of a resolution outside a meeting, and the carrying out of resolutions. Section 35 provides for resolutions to be passed outside a formal committee meeting but the resolution must then be confirmed at the next formal committee meeting.
The ‘informal’ Committee meeting on 26 November 2006 has dubious status. It seems the minutes were not distributed to owners or provided to the applicants when they requested minutes in January 2007. Moreover the ‘minutes’ record decisions that appear to have relied on information which, based on the documentation provided, was not apparent until after the meeting. The meeting was held before the BCM sent the first formal letter to the applicants or the applicants formally responded. The Chairperson’s letter of 2 December says an informal committee meeting resolved to offer compromises but some of these are not mentioned in the minutes. Moreover, the minutes suggest the Committee decided to refuse the cat and pursue the reinstatement of the fence on the basis of the purported refusal of the compromises which were apparently not offered to the applicants until a week later. The Chairperson’s letter of 27 December seems to just reiterate the 26 November decisions despite the intervening communication.

While the Chairperson may well have acted in accordance with the views of the Committee, the absence of proper meetings or minuted decisions gives the impression she was acting unilaterally. Moreover, neither the applicants nor other owners were able to see the minuted decisions of the Committee and, if they disputed those decisions, to lodge a notice of opposition to any decisions before the decisions were given effect. The processes required by the legislation do not need to be cumbersome or difficult – but they ensure transparency and participation in decision-making.

Based on the information provided by the Body Corporate, it is not evident that the Committee has formally or properly considered the applicants’ formal request for the cat and the painting on 30 November 2006. However, notwithstanding that, I am under no illusions that the Committee would have arrived at different conclusions had appropriate decision-making processes been followed.

Reasonableness of the decisions

The next question is whether the purported Body Corporate decisions were reasonable. Section 94 of the Act requires the Body Corporate to act reasonably in anything it does. As indicated above, in the circumstances of this scheme I do not consider a Body Corporate decision to grant approval for a pet conditional on it being desexed and kept inside at night would be at all unreasonable. The question of the fence is less straightforward.

The apparent objections to the painting which seem to have contributed to the refusal include:

Neither the legislation nor the by-laws prohibit the painting of the fence – they merely require the applicants to seek Body Corporate approval. The Body Corporate is, therefore, given discretion to approve the painting or not. To act reasonably the Body Corporate must not dismiss the request out of hand but must consider the request in all the circumstances and base its decision on reasonable grounds. The primary consideration for the Body Corporate is any adverse impact on other owners and occupiers and the scheme in general.

In response to the applicants’ proposal that they repaint the fence cream the Chairperson has said that regardless of the colour the painting does not comply with by-laws. I do not accept this. Firstly, painting is only against the by-laws if it is not approved by the Body Corporate acting reasonably. Secondly, the fact that the Body Corporate has allowed the painting of the besser wall to remain because it is not conspicuous, even though it was also undertaken without approval, indicates that the visual impact of the painting (along with maintenance) is the primary concern.

It is entirely reasonable that the visual impact (and maintenance concerns) is the primary issue for the Body Corporate. Indeed if the paint could not been seen it would arguably be unreasonable for the Body Corporate to refuse it without any other adverse impact.

There is no evidence to suggest that the orange paint is visible from outside the scheme and, from the material provided, it would seem that only the immediately adjacent lots could have more than a glimpse of the fence. The adjacent lots are Lot 7 and 9. Lot 7 did not make a submission and their lot is orientated differently. As such it seems that the Chairperson, in Lot 9, is the party primarily affected by the visual impact of the paint.

The applicants are of the view that the unpainted fence was of poor quality and visually unappealing. The Body Corporate considers the original fence blends with the environment, and views the orange paint as garish and unacceptable. I have received several colour photographs in which the colour of the palings ranges from a pale apricot, to a brickish orange through to almost red. It seems unlikely that this significant colour variation arises solely from different cameras and light conditions. However in the circumstances I do not consider it is necessary to inspect the fence personally. As the applicants have offered to repaint the fence cream colour I have considered the visual impact on the basis of that colour.

The Body Corporate is entitled to consider consistency and visual impact when considering a proposed improvement but I do not believe that it would be reasonable to insist on absolute uniformity in areas that have minimal adverse visual impact on other lots or the scheme in general. In this situation I simply do not see any reason why a fence painted a neutral cream colour would be visually offensive or could have any adverse impact on the adjacent lots.

The Body Corporate’s concerns regarding the maintenance of the fence are entirely reasonable. However, I consider that these concerns should be allayed by the applicants’ commitment to both maintain the fence and reinstate the original fence when they leave. While I can well understand that owners may be reticent about the enforcement of these commitments, the entrenchment of the provisions in a legally enforcement order could address that worry. This will protect the financial investment of owners who funded the fence.

Body Corporate response to alleged by-law breaches

The Body Corporate has suggested that the applicant’s cat breached By-law 1 in regard to noise, but provided no evidence to substantiate the claim. As is the case with all alleged by-law breaches, the appropriate cause of action for the Body Corporate to take if they believed a by-law had been breached would be to raise the matter informally with the owner or occupier in question. If this did not rectify the situation, the Body Corporate may wish to pursue the by-law contravention procedures outlined in sections 182 to 188 of the Act.

The first step is generally to issue a contravention notice. The contravention notice, which must state certain things including the nature of the breach, must be given to the person who the Body Corporate believes is breaching the by-law. If the issuing of a contravention notice does not rectify the matter, the Body Corporate can either commence proceedings in the Magistrate’s Court or may lodge a dispute resolution application in the Commissioner’s Office.

I also note that the Chairperson indicated that if the applicants did not reinstate the fence the Body Corporate would do so itself and seek reimbursement of the costs. There is no power in the current by-laws for the Body Corporate to recover costs incurred as a result of a by-law breach (and any such purported power would be contrary to the Act if it sought to impose a monetary liability on an owner, unless it was in the context of an exclusive use by-law^[7]). Accordingly, any costs incurred by a Body Corporate in respect of an alleged by-law breach could normally only be recovered by legal action such an order of an adjudicator.

Conclusion

An adjudicator must make an order that is just and equitable in the circumstances. The applicants have painted their fence without seeking the requisite approval of the Body Corporate. However I must consider whether it would be just and equitable to allow the fence to remain painted on the basis that it would not have been reasonable for the Body Corporate (if they had formally considered the issue) to refuse the belated request to paint the fence.

I accept that the Body Corporate had some justifiable concerns in regard to the unauthorised painting of the fence. However, in view of all the material provided to me I simply do not see that the Body Corporate or any owner is materially disadvantaged by the applicants’ proposal to repaint the fence cream, along with their commitment to maintain the fence and reinstate the original timber on departure. In the circumstances, I consider it is just and equitable to order that the fence in question can remain painted subject to the colour being changed and other specified conditions.

I have set a timeframe on the painting. I have also required the applicants to notify the Committee of the proposed new colour (for example, by forwarding a colour chart or paint chip). This does not give the Body Corporate the right to approve or veto the colour choice but enables them raise any concerns (such as that the chosen colour is not consistent with the existing awning) before the painting actually occurs. I trust that both sides will be cooperative in this regard. While I would hope the matter would not extend that far, if the applicants fail to respond to any reasonable concerns of the Body Corporate regarding the paint colour, the Body Corporate could take action in the Magistrates Court to enforce the order.

In ordering that the applicants must reinstate the fence on their departure, I have allowed that the Body Corporate may subsequently grant approval to retain the paint. This acknowledges that, particularly as lot ownership changes, the Body Corporate may have a different view as to the desirability of painting the fence. If, for example, the Body Corporate later makes a decision to paint the entire boundary fence it would be inappropriate for the applicants to then install unpainted palings. In regard to concerns that the applicants may leave without reinstating the fence, I have ordered that this must occur prior to their sale or disposal of the property. This order can be enforced in the Magistrates Court even after the applicants are no longer owners.

Some owners, including the Chairperson, have stated that the applicants’ ignorance of the by-laws does not excuse them from compliance with those requirements. While this is certainly the case, the Committee does not appear to acknowledge that it did not follow the legislative requirements regarding Committee decisions and so both parties have failed to comply with appropriate processes. The legislative requirements, including the relevant responsibilities in regard to these exclusive use areas, can be complex and I consider that some understanding and latitude is warranted on all sides. I would also encourage all owners to put this issue behind them, and avoid letting any animosity from this dispute adversely impact on future relationships in the scheme.

^[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] Section 181 of the Act now enshrines the rights to keep a guide dog.

^[5] Toohey D at p.2-3 in The Gardens [2004] QBCCMCmr 351 (13 July 2004) See also Toohey D in San Lucas Villas [2004] QBCCMCmr 498 (22 October 2004) and Kawana Island Villas [2005] QBCCMCmr 648 (21 November 2005) for further discussion of the maintenance responsibilities in regard to fences in exclusive use areas.

^[6] See section 114(4)(b) of the Standard Module regarding improvements to common property authorised under that section and section 109(3)(a) regarding fixtures and fittings installed in a lot.
^[7] See section 180 of the Act which sets out the limitations for by-laws.

Number of Scheme:	1854
Name of Scheme:	Palermo Lane
Address of Scheme:	12 Palermo Street Morningside QLD 4170

-	The Chairperson owns a cat which is allowed to roam freely.
-	They have put their cat down because of their concerns for his safety with other cats around and because his temperament did not enable them to keep him inside at night.
-	The reference to By-law 14 and 34 is irrelevant because there has been no structural change.
-	They would be willing to paint the fence an alternative colour of cream, which blends with the pre-existing awning in the courtyard.
-	They will confirm in writing that they will restore the fence to its existing state when they sell.

-	the failure to notify, consult with or seek approval from the Body Corporate;
-	the need to ‘up-hold’ the by-laws;
-	the desire for consistency of fencing throughout the complex;
-	the very bright orange colour of the fence;
-	the fact that the fence (as opposed to the besser wall which was also painted but allowed to remain so) is ‘conspicuous’ from neighbouring properties;
-	the maintenance impact on the Body Corporate, who deliberately selected a treated fence to avoid the cost of repainting a painted fence; and
-	the hardship experienced by some owners in funding the fence.

-	The Body Corporate’s register of authorisations shows approval was given in 2001, 2003 and 2004 for two dogs and one cat. Each is approved on condition that permission is not transferable to another owner or animal, , the animal must be kept clean and tidy and faeces cleaned up immediately, the animal must be leashed and not unattended on common property, and permission may be withdrawn after three complaints are received about the animal.
-	The only relevant meeting minutes able to be provided are of an ‘informal’ Committee meeting on 26 November 2006 which noted the fence painting which was a breach of by-laws, unattractive and a maintenance issue, and the cat which breached the by-law and was causing a nuisance. The minutes agreed to the Body Corporate enforcing the by-laws and that the Chairperson would write to the applicants requesting verification that the cat was desexed and asking for the fence to be returned to its original condition. However the minutes then indicate that the applicants had refused to keep the cat in and replace the fence and so it was also agreed that the BCM should start proceedings to reinstate the fence and that the cat ‘must go’.
-	In regard to the offer to repaint the fence cream, the Chairperson says the by-laws were breached regardless of what colour the fence is painted and they want the by-laws enforced.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Palermo Lane [2007] QBCCMCmr 292 (18 May 2007)