Raintree Mews [2007] QBCCMCmr 390 (28 June 2007)

Last Updated: 6 July 2007

REFERENCE: 0146-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	18061
Name of Scheme:	Raintree Mews
Address of Scheme:	15 Ingham Court MOOROOBOOL QLD 4870

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

the body corporate for Raintree Mews

I hereby order that, within two months, Luke Shepherd, owner of lot 1 (respondent) must remove the sails he attached to the roof of his building and the garage of the adjacent scheme and must reinstate the fencing between the schemes with fencing of a similar type to the fencing he removed. This is provided that the respondent does not obtain written permission from both the body corporate for the adjacent scheme and from the body corporate for Raintree Mews to allow alternative changes.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0146-2007

"Raintree Mews" CTS 18061

Application

Raintree Mews Community Titles Scheme (Raintree Mews) is a 4 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

Lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by the body corporate for Raintree Mews (applicant) seeking orders against Luke Shepherd, owner of lot 1 (respondent). The body corporate is seeking order to require the respondent to reinstate an area of the common property that the respondent is alleged to have altered without authority.

Submissions

The body corporate’s main submissions were to the effect that:

• The respondent removed a paling fence running alongside his lot between Raintree Mews and Felicity Flowers, the adjacent scheme;
• The respondent attached sails to the roof of Raintree Mews and to the garage wall of the adjacent scheme; and
• The respondent installed some additional brush fencing.

The respondent's main submissions were to the effect that:

• He is experienced in landscaping;
• The area in question was unused and had no visual appeal;
• He removed a small section of fence, about four metres, but this fence served no purpose as it was hard against the garage wall of the adjacent scheme;
• New brush fencing was attached to the existing fence purely to enhance its visual appeal;
• Three small shade sails have been erected to provide a shaded area for his six year old son to play. These are anchored into the block work using 25mm bolts and anchored to the roof by relacing four roofing screws with screw eyes. These have been sealed to prevent any moisture entering the wall block or roof cavity and will be removed in the event of a cyclone; and
• He did not seek prior approval as there is no visual impact from any other unit in either complex.

Decision

Applicable law

The legislation includes provisions to the effect that:

• The body corporate must administer the common property and body corporate assets reasonably and for the benefit of owners (Act 94, 152);
• The body corporate must maintain common property in good condition and, for lots under a building format plan, must maintain in good condition all roofing structures providing protection. However, the body corporate can recover the maintenance costs, as a debt, from a person who caused or contributed to the damage (Standard Module, 109);
• The body corporate may authorise the owner to make an improvement to the common property for the benefit of the owner's lot and that owner must then maintain the improvement unless excused by the body corporate (Standard Module, 114);
• The body corporate may take legal action against an owner to recover loss arising from the owner damaging common property (Act, 36(1)); and
• The body corporate is taken to be the owner of scheme land for the purposes of the Dividing Fences Act 1953 (Act, 311).

Unauthorised changes

The respondent has made a number of changes to common property areas that the body corporate is required to maintain. These changes appear to be relatively minor and unlikely to detrimentally affect any other occupiers. However, there are some significant issues of concern.

Firstly, the respondent has removed a dividing fence between Raintree Mews and the adjacent scheme. Permission would be required from both bodies corporate for this fencing to be removed.

Secondly, the respondent has attached sails parts of the common property of both Raintree Mews and the adjacent scheme. Again, permission would need to be obtained and the respondent would need to satisfy both bodies corporate that these actions are not likely to lead to maintenance concerns.

In the circumstances, the body corporate for Raintree Mews is entitled to an order that the respondent reinstates the fencing and removes the sails. However, it is possible that the respondent may be able to obtain some approval for the changes at this late stage or at least obtain approval for some modifications. For example, the body corporate for Raintree Mews may be willing to allow the sails to remain if the respondent was willing to erect separate poles for the sails wholly within the boundaries of the scheme.

I will therefore order that the respondent must remove the sails attached to the roof of his building and the garage of the adjacent scheme and must reinstate the fencing between the schemes with fencing of a similar type to the fencing he removed. However, the order will allow for alternative changes if agreed in writing between all affected parties.

Order

For these reasons, I make the order above.