Federation Park [2007] QBCCMCmr 450 (30 July 2007)

Last Updated: 8 August 2007

REFERENCE: 0378-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	30544
Name of Scheme:	Federation Park
Address of Scheme:	9 Harpulia Court MORAYFIELD QLD 4506

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

Eileen Meyer and Peter Hamilton, as trustees, the Owners of lot 21

I hereby order that the erection of the garden shed and paling fence on common property adjacent to lot 21, is deemed to have been authorised by the body corporate committee, and that this authorisation continues until the next meeting of the committee, at which meeting the committee is to consider motions to ratify the erection of the shed and paling fence on common property adjacent to lot 21; I further order that if the committee does not ratify the erection of the garden shed and paling fence on common property adjacent to lot 21, the fence and shed are to be removed; I further order that notice of the committee meeting is to be given in accordance with Section 28 of the standard Module and minutes of the meeting are to be prepared and distributed in accordance with Section 36 of the Standard Module.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0378-2007

"Federation Park" CTS 30544

APPLICATION

The applicants have sought the following orders against the body corporate for this scheme:

1) That the shed and paling fence erected on or near the boundary to our property and common property be removed; and
2) That the respondents be forbidden to erect same near our property in the future; and
3) That appropriate action be taken to reprimand the respondents for acting out of order pursuant to section 35 of the Body Corporate and Community Management Regulation 1997; and
4) That appropriate action be taken to reprimand the respondents for breaching section 111 of Body Corporate and Community Management Regulation 1997; and
5) That appropriate action be taken to reprimand the respondents forgiving permission for a contractor to access our property illegally.

SCHEME DETAILS

Federation Park is a community titles scheme comprising 42 lots and common property. The scheme was established upon registration of the standard format plan and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

This scheme has an unfortunate history of disputes between the applicants, who originally developed the scheme, and the body corporate. The applicants have stated that it was originally intended that a full time caretaker would be appointed to manage the common property and to that end, a garage was constructed at the rear of lot 21 to provide storage space for caretaking equipment and a vehicle, allowing easier access to the common property. To facilitate access to the garage in lot 21, a concrete driveway was constructed over the common property and access was then available through a visitor’s car park and then on to one of the roads within the scheme. However it is evident that these arrangements have never been formalised. I understand that the development approval for the scheme land did not contemplate that the applicants’ lot would have vehicular access to the rear of the lot, and no easement has been granted to lot 21 to allow access over common property.

Unfortunately these informal arrangements have proved to be unsatisfactory given the ongoing animosity between the applicants and the body corporate. Previously, the body corporate erected steel bollards at the end of the concrete driveway to prevent access to the garage. The body corporate believed that it was entitled to take this action as:

• The development approval for the scheme land did not contemplate that the applicants’ lot would have vehicular access to the rear of the lot;
• There is a garage on the lot which is able to be accessed from the front;
• The building at the rear of the lot was intended to be a storage shed and not a garage;
• The driveway was not built as part of the original development;
• The use of the shed as a garage creates safety problems with the two visitor car parks as well as with the adjacent rubbish bin area;
• The body corporate has a duty to make and keep the common property safe;
• The Caboolture Shire Council town plan does not allow for the shed to be used to store vehicles.

These measures were not adequate to prevent the occupiers of lot 21 driving over common property to access their shed and unfortunately, the parties have not been able to reach any form of compromise position, and the body corporate has now blocked off access to the shed by placing a timber fence and garden shed on the common property, but very close to the boundary line.

The applicants state that:

• Previously at an AGM held on 27 October 2004, it was resolved that "the owners of lot 21 be asked to replace the boundary fence across the storage shed and that prospective purchasers/ tenants are made aware that there is no access to the storage shed across the common property. This fence is to be erected within 21 days of the motion being passed". However the applicants state that they did not receive any instructions to "replace the boundary fence" and claim that in fact, "there was no fence to replace".
• At an extraordinary general meeting on 17 March 2005 it was resolved that "the body corporate erect a paling fence of the same design as the fence on the balance of the boundary between the common property and lot 21 at the place marked B on the attached plan". It was further resolved to engage Caboolture Fencing and Gates to do the work for $464;
• At an AGM on 28 September 2005 it was resolved that the above resolution to construct a paling fence be rescinded and instead, steel bollards were put in place to prevent vehicular access to lot 21 over the common property;
• On or around 28 March 2007, a paling fence dissimilar to the fence on the boundary of the common property and lot 21 was erected. A small garden shed had been erected some time before a few centimeters from the applicants’ boundary. It is claimed that the shed was erected without being approved by any type of resolution.
• On 3 April 2007, the applicants wrote to the committee "requesting that the offending fence and shed be removed". In response, they received a letter from the committee dated 9 April 2007, in which the committee confirmed that "a shed and fence have been erected on common property "in accordance with resolutions of the committee.

The applicants oppose the presence of the fence and shed on the following grounds:

• The committee has not acted in accordance with section 35 regarding voting outside committee meetings;
• The fence is too close to the boundary to allow the applicants to erect their fence;
• They believe the shed is being used to store "hazardous chemicals" and the committee has not kept a materials safety data sheet and a register listing all the hazardous chemicals in accordance with the workplace Health and safety Act 1995;
• The use of the shed as part of the boundary line and the erection of a fence which is dissimilar to other fences erected on their property, is aesthetically displeasing and devalues their property;
• The committee’s letter dated 9 April 2007 states "we have purposely relinquished a small part of body corporate land between the boundaries" yet there is no record of a resolution without dissent to support that decision;
• The fence has rendered a pedestrian access gate unusable;
• They were not given notice that their property had been entered to have the fence and shed erected, causing distress to their tenants;
• The committee has advised them that the fence was erected to prevent "service vehicles" accessing the lot over common property.

Pursuant to section 243, all lot owners and the body corporate committee were invited to respond to the application.

A submission was received from the committee in which the following points were made:

• At an AGM held on 27 October 2004, the owners resolved to ask the applicants to replace the boundary fence across the storage shed area and that they make any prospective purchasers aware that there is no access to the storage shed across common property.
• The applicants subsequently wrote to the body corporate requesting the grant of an easement over common property and stated that if agreement could not be achieved, they would seek a court order under section 180of the Property Law Act 1974;
• In January 2007, a 3M x 3M x 2M garden shed was erected on the common property and the first objection received from the applicant was contained in this dispute resolution application;
• At a meeting of the committee held on 4 December 2006, it was resolved that a garden shed be acquired at a cost of up to $800;
• The fence was erected on common property;
• The fence is the same as the fence in lot 38 "which has a more aesthetic look";
• In order to access the lot, the service vehicle had to negotiate 2 visitors’ parking spaces, cross common property over a pedestrian footpath around bollards between the garden shed and the refuse area and across the concrete compound to arrive at its destination,
• The actions of the lot 21 occupiers posed a danger to the safety of all residents, particularly numerous residents who are elderly and/ or disabled
• The committee is obliged to keep the common property safe and eliminate any potential safety hazards;
• The orders sought by the applicant are opposed and the application should be dismissed.
• The actions of the lot 21 occupiers posed a danger to the safety of all residents, particularly numerous residents who are elderly and/ or disabled.

Attached to the submission was advice from Herdlaw solicitors who advised as follows:

• A fence is required on the common property boundary with lot 21 to prevent the owner of lot 21 using the common property for vehicle access to the storage shed;
• The owners of lot 21 do not have Council approval to use the shed as a garage for motor vehicle storage and do not have the consent of the body corporate to have access to the shed over the 2 car parks located on common property;
• To allow access, the body corporate would have to grant an easement over the common property to the owners of lot 21 which would mean that the body corporate would lose at least one car park. The body corporate would not be able to grant that easement without making further provision for parking elsewhere on the scheme land;
• The body corporate have a duty to provide for the safe use and enjoyment of the common property for all owners and as a matter of public liability risk, is required to prevent unauthorized motor vehicle access on common property.

Four lot owners opposed the application and supported the committee on the following bases:

• Previously, the applicant had sought an order for removal of steel bollards that were installed by the body corporate to prevent the occupants of lot 21 driving over common property to access the rear of lot 21. This application was dismissed;
• Nevertheless the owners of lot 21 refused to build a fence and continued to drive a truck over common property to access their shed. Consequently it was necessary to build a fence on body corporate land to protect persons walking on common property to reach facilities such as the hall, pool and garbage collection area.
• Although the applicants state that it is unacceptable to use a shed as part of a boundary, they themselves, are using a shed as part of their lot boundary;
• The safety of people using the common property is now protected by the shed and fence constructed by the committee;
• The fence is the same as the fence in lot 38 also provides privacy to lot 21;
• They have never noticed dangerous chemicals being stored in the shed;
• Constant applications from the applicants are draining the funds of the body corporate which are already depleted by the failure of the applicants (who are the owners of lots 21 and 15) to pay body corporate fees for approximately 4 years.

Submissions made in favour of the application included the following:

• The installation of the garden shed does not appear to have been approved by a general meeting;
• The current committee is seeking to cause an annoyance to the owners and occupiers of lot 21;
• The body corporate has "given away" common property;
• pool chemicals are stored in the shed;
• the decision of a general meeting to build a fence on the lot 21 boundary was previously revoked as it was decided to construct steel bollards instead.

The applicants made the following submissions in reply:

• they maintain that the fence should be removed as it is dissimilar to the existing fence along part of the lot 21 boundary;
• they believe that some pool chemicals and mower fuel are stored in the shed;
• a trailer had previously been parked elsewhere on common property and apparently no objection was raised by the body corporate;
• the committee has previously harassed tenants of lot 21.

JURISDICTION

The application evidences a dispute between the owner of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) 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

(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

It is unfortunate that the parties have not been able to resolve this dispute in a more civil manner, and that the tenants of lot 21 have had to bear the brunt of the body corporate’s actions. On the other hand however, the body corporate points out that it has a general obligation to administer, manage and control the common property for the benefit of lot owners (section 152(1)(a) of the Act) and the advice obtained from the body corporate solicitor was that as a matter of public liability risk, the body corporate is required to prevent unauthorized motor vehicle access on common property.

I note, that the owners/ occupiers of lot 21 do not have body corporate permission to access their shed over common property and to allow such rear access, the body corporate would have to grant to the owners of lot 21, an easement over the common property which would mean that the body corporate would lose at least one car park and that therefore, it would be necessary to make further provision for parking elsewhere on the scheme land.

In response to the allegation that the fence and shed were erected without being approved by any type of resolution, the committee point out that these works were within the committee expenditure limit and has provided a copy of the minutes of a committee meeting held on 4 December 2006, at which it was resolved that a garden shed be acquired at a cost of up to $800. The committee has also provided copy of the minutes of a committee meeting held on 24 February 2007, which state that "the committee has decided to have a fence erected on body corporate property to erect a fence on common property between the newly installed garden shed and the recycle bin enclosure".

I have a number of concerns with the way these committee resolutions were achieved. In particular, I note the reference in both sets of minutes to each meeting as an "unofficial meeting of the committee", which tends to indicate that that proper notice of committee meetings was not given or alternatively, that the requirements of section 35 of the Standard Module have not been complied with. In this regard section 35 of the Standard Module provides as follows:

Voting outside committee meetings
(1) A resolution on a motion before the committee is a valid resolution of the committee, even though the motion is not passed at a meeting of the committee called and conducted
under division 7, if--
(a) notice of the motion is given to all committee members or, in an emergency, as many members as it is practicable to contact; and
(b) a majority of all voting members of the committee entitled to vote on the motion agrees to the motion.
(2) The notice must be given in writing, and the members’ agreement to the motion must be given in writing but, in an emergency, the notice may be given, and the member’s agreement expressed, orally or by another appropriate form of communication.
(3) Advice of the motion must be given, at the time notice of the motion is given or, in an emergency, as soon as reasonably practicable, to each lot owner, other than a lot owner who--
(a) has instructed the secretary that the lot owner does not wish to be given advice of committee meetings; and
(b) has not withdrawn the instruction.
(4) The notice and advice of the motion may be given by--
(a) the secretary; or
(b) another member of the committee who is authorised by a majority of voting members of the committee to give the notice and advice.
(5) For the operation of sections 34(1) and (2), 36(2) to (4) and 37, the committee, in dealing with a resolution under this section, is taken to deal with the resolution at a meeting of the committee.
(6) A motion voted on under this section must be confirmed at the next meeting of the committee held after the motion is voted on.


I have similar concerns regarding the minutes of an "informal committee meeting" held on 4 December 2006, at which it was resolved that a garden shed be acquired at a cost of up to $800, and also the minutes of an "informal committee meeting" held on 24 February 2007, which state that "the committee has decided to have a fence erected on body corporate property to erect a fence on common property between the newly installed garden shed and the recycle bin enclosure".

In this regard, section 36 of the Standard Module provides as follows:
Minutes and other records of committee
(1) The committee must ensure--
(a) full and accurate minutes of its meetings are taken; and
(b) a full and accurate record is kept of each motion voted on other than at a meeting.
(2) The secretary must give a copy of the minutes of each meeting and of any resolution voted on other than at a meeting to the following persons--
(a) each member of the committee;
(b) each lot owner who is not a member of the committee.
(3) Subsection (2)(b) does not apply to a lot owner who--
(a) has given the secretary a written notice instructing the secretary that the lot owner does not wish to be given copies of the minutes of committee meetings and resolutions voted on other than at meetings; and
(b) has not withdrawn the instruction.
(4) The copy must be given to the person--
(a) within 21 days after--
(i) for a copy of minutes of a meeting--the holding of the meeting; or
(ii) for a copy of a resolution voted on other than at a meeting--the passing of the resolution; and
(b) in 1 of the following ways--
(i) by handing it to the person;
(ii) by sending it by mail;
(iii) by sending it by facsimile;
(iv) by sending it electronically.
(5) In this section--
full and accurate minutes, of a meeting, means minutes including each of the following--
(a) the date, time and place of the meeting;
(b) the names of persons present and details of the capacity in which they attended the meeting;
(c) details of proxies tabled;
(d) the words of each question decided;
(e) the number of votes for and against each question decided;
(f) details of correspondence, reports, notices or other documents tabled;
(g) the time the meeting closed;
(h) details of the next scheduled meeting;
(i) the secretary’s name and contact address.
full and accurate record, of a motion voted on other than at a meeting, means a record including each of the following--
(a) the date notice of the motion was given;
(b) the names of the committee members to whom notice was given;
(c) the words of the motion voted on;
(d) the names of the committee members who voted on the motion;
(e) the number of votes for and against the motion.

The minutes of the meeting held on 4 December 2006 merely record that approval was given for the purchase of a garden shed but contain no details as to where the shed is to be installed. Secondly, the minutes of the meeting held on 24 February 2007 merely state that "the committee has decided to have a fence erected on body corporate property to erect a fence on common property between the newly installed garden shed and the recycle bin enclosure".


There is no mention of the actual resolution voted upon or the number of votes for and against each question decided as required by section 36.^[1]

I believe that these deficiencies need to be attended to at the next meeting of the body corporate committee.

I now turn to the other matters raised by the applicant such as the use of the shed as part of the boundary line, the style of the fence, and the statement by the Chairperson that "we have purposely relinquished a small part of body corporate land between the boundaries".

While the statement by the Chairperson that "we have purposely relinquished a small part of body corporate land" is ambiguous and could lead one to believe that the body corporate committee has disposed of common property, a closer reading of the file and examination of photographs indicates that this is not the case, and involves perhaps, a poor choice of words by the Chairperson. From my reading of evidentiary material, the committee constructed the fence and garden shed a few centimeters within the boundary, as it would not have been able to unilaterally construct a fence on the boundary without seeking agreement from the owner of lot 21. The body corporate continues to be the owner of the area in question. Accordingly I do not believe that section 111 of the Standard Module, regarding disposal of Common Property, arises in this case.

Of course, the construction of the fence and shed on common property does not excuse the body corporate from entering lot 21 without notice.

Next, the applicants have raised concerns regarding the style of the fence and the appearance of the garden shed. I note from the photographs that both portions of the fence consist of unpainted treated pine palings, nailed to timber rails, although the new section differs slightly from the existing boundary fence for lot 21 as there are no spaces between the palings. Although I note the applicants’ concerns regarding the appearance of the fence and shed I also note that they are located on common property and there are limited grounds for me to intervene.

Having regard to the foregoing, I propose to order that the erection of the garden shed and paling fence on common property adjacent to lot 21 is deemed to have been authorised by the body corporate committee and that this authorisation continues until the next meeting of the committee, at which meeting the committee is to consider motions to ratify the erection of the shed and paling fence on common property adjacent to lot 21.

I also propose to order that if the committee does not ratify the erection of the garden shed and paling fence on common property adjacent to lot 21, the fence and shed are to be removed.

Further, notice of any such committee meeting is to be given in accordance with Section 28 of the standard Module and minutes of the meeting are to be prepared and distributed in accordance with Section 28 of the Standard Module Regulation.

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^[1] 36(5)(e) Body Corporate and Community Management (Standard Module) Regulation 1997