Vaggelas Jade [2007] QBCCMCmr 495 (21 August 2007)

Last Updated: 3 September 2007

REFERENCE: 0374-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23507
Name of Scheme:	Vaggelas Jade
Address of Scheme:	3 Vaggelas Crescent BIGGERA WATERS QLD 4216

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

Graeme John Thurecht and Mary Catherine Frost, the owners of lot 1

I hereby order that the application for an order that a fence attached to an existing boundary fence be removed and that repairs be made to the boundary fence is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0374-2007

"Vaggelas Jade" CTS 23507

Scheme

"Vaggelas Jade" community titles scheme 23507 was registered as a group title (now known as standard format) plan of subdivision on 10 February 1995 comprising two lots and common property. The scheme is regulated by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

Application

This application is brought by the owners of lot 1, Graeme John Thurecht and Mary Catherine Frost (the applicants), against the owner of lot 2, Kenneth John Russo (the respondent), seeking an order that a fence attached to the existing common property boundary fence be removed and that repairs be made to the common property fence.

The dispute arises from the construction of a fence or privacy screen by the respondent without the consent of the applicants.

The applicants’ grounds are to the following effect:

•	On or about 3 January 2007, the respondent advised the applicants that he wanted to construct an additional fence adjoining lots 1 and 2 of the premises to act as a privacy screen. Various options for a fence including height, length and materials were discussed, but no agreement reached.
•	On or about 13 January 2007, the respondent again raised the topic of the fence. The applicants advised that they wanted to discuss the options for the fence at a later date.
•	On or about 14 January 2007, the respondent retained a builder who commenced dismantling the existing fence.
•	On 1 February 2007, the construction of the fence continued, after three further interactions between the parties where they could not agree on the dimensions.
•	The new fence has been nailed and screwed to the existing fence causing damage to the existing fence.
•	Further, the respondent is alleged to have positioned a temporary spot light which is facing the outdoor living area on the applicants’ premises. The respondents are alleged to switch on the light to harass and interfere with the applicants’ quite enjoyment of their premises. However, no orders are sought in this regard.

Submission

The respondent’s submission was to the following effect:

• The original boundary fence between the two lots, which gave privacy to both duplexes, was removed by the applicant and replaced with the fence the subject of this dispute, while the respondent was at work. The respondent never gave his consent to either the style of fence or the construction dimensions.

• As the construction of the fence evolved, it became apparent that there was a privacy issue for the respondent. When the respondent raised this issue with the applicant, he was told to wait until construction was completed to gain an overall view. The respondent made it clear that if his privacy was not maintained, the issue would need to be addressed.

• There has been a failure to resolve the matter satisfactorily, despite the respondent trying on many occasions to reach a compromise. Ultimately, the respondent instructed his builder to bring the fence inside his boundary and build it at his expense.

• The applicants’ unit is set back 7m from the front of the respondent’s unit. The applicant has constructed a covered patio to this point. He has also constructed a 2m high fence (on the other side) giving him privacy for the entire length of his deck, yet he does not wish to allow the respondent the same privacy rights.

• Under Gold Coast City Council (GCCC) by-laws in Biggera Waters, the respondent is allowed a 2m high fence to within 6m of the water. This is common to other duplexes in Vaggelas Cres to ensure privacy is maintained. The respondent’s screen is well short of the 6m build line.

• The respondent complains of a light attached to one of the boundary posts by the applicants. The light sits at 2.3m in height and is 1.5m from the respondent’s lounge room.

After a failed attempt to conciliate this dispute, the applicants amended their application by seeking the following resolution:

The structure which has been erected by Mr Russo to be removed at his expense and a fence be erected on common property boundary to match up with the existing fence, being 200 x 200 sculptured posts and 65 x 19 pencil round black butt decking.
For Post B to be 1.6 metres from post A and the decking to be 1.8 metres from ground level and the post to be 380mm higher than the top of the fence.
For Post C to be at the end of Mr Russo’s deck and the height of the fence to be 1 metre above his deck level and the post to be 380mm higher than the fence. This height and length would not detract from the appearance, the outlook and breeze which the applicants are now being deprived of. Furthermore, it would give Mr Russo privacy and safety from anybody falling off the deck. The applicant is prepared to build the fence himself (as he did the existing fence) with Mr Russo sharing half the cost.

The respondent responded to the amendment by stating that the latest plan will expose both the front of the respondent’s property and lounge room to 3 neighbours that he was screened from originally and more importantly, the public park on the corner of Stradbroke St and Annoula Ave. This he will not compromise as he has had two thefts, including a break-in to their home.

Jurisdiction

This is a dispute between two owners in a community titles scheme concerning alleged contraventions of the Act and comes within the dispute resolution provisions of the Act (see ss.226, 227 & 228).

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)).

Decision

Fence/Privacy Screen

The applicants and their legal advisor appear to be under a misapprehension both as to the nature of the land separated by the fence and the fence in question. Both mistakenly refer to the fence as a "common property boundary fence". In fact, the fence is not common property, nor does it divide common property. The fence divides two lots in a standard format plan (previously known as group titles plan) and is classed as a "dividing fence" under the Dividing Fences Act 1953 which is the responsibility of both owners to maintain (see s311(2), Act). The land divided by the fence is freehold land, with the applicant owning that land within the boundaries of lot 1 and the respondents owning that land within the boundaries of lot 2.

Section 124(3) of the Act (quoted by the applicants’ legal advisor in a letter to the respondent) refers to exclusive use by-laws. It has no relevance to the circumstances of this dispute. There are no areas of exclusive use within this body corporate. Further, the reference to s.5(1) of the Act is incorrect. The applicants’ legal advisor is in fact referring to the Standard By-Laws in Schedule 4 of the Act, which do not have any relevance to this scheme. The applicable by-laws for this scheme are those contained in Schedule 3 of the Building Units and Group Titles Act 1980. In any event, the by-law referred to relates to common property. As already stated, neither the land upon which the fence is constructed, nor the fence itself, is common property.

I do not accept the applicants’ assertions that the boundary fence has been damaged by the respondent. The photographs submitted in support of this claim show a total of five screws, extremely close up, that are barely visible and incidental to the erection of the fence/privacy screen by the respondent within the boundaries of his lot. The screws are not visible in any of the photos submitted by the applicants, except those taken at extremely close range. I consider the applicant’s claim that the fence has been damaged, exaggerated to say the least. In any event, it appears as though the basis for this claim was the applicants’ mistaken view that a particular by-law applied to this body corporate and to the fence, in particular, when, in fact, it does not.

The respondent has, in fact, constructed the fence/privacy screen in question within the boundaries of his lot. The only justification for its removal would have to come from the by-laws, GCCC regulations (although the GCCC would be the appropriate authority to pursue this with), or a breach of the nuisance provision in the legislation.

The by-laws applicable to this scheme do not contain any prohibition on the erection of fences within individual lots. Further, the respondent has stated that he has complied with GCCC requirements by not having a fence in excess of 2m within 6m of the water. The only other ground upon which I could order the removal of the fence or privacy screen would be if it constituted a nuisance. Section 167 of the Act provides as follows in this regard:

167 Nuisances

The occupier of a lot included in a community titles scheme

must not use, or permit the use of, the lot or the common

property in a way that--

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of

another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the

common property by a person who is lawfully on the

common property.

Apart from the applicants’ very general claim in their amendment to the application that they are being deprived of "appearance, outlook and breeze", I have not been supplied with any information that could be said to substantiate a nuisance. As the original fence depicted in the photograph submitted by the respondent appears to be no higher than the privacy screen recently constructed, I cannot accept that the applicants are being deprived of any appearance, outlook or breeze that they were previously enjoying. Accordingly, I dismiss this aspect of the application.

Lights

The respondent is alleged to have positioned a temporary spot light which is facing the outdoor living area on the applicants’ premises. The respondent is alleged to switch on the light to harass and interfere with the applicants’ quite enjoyment of their premises. A photograph of the light in question was submitted with the application. I consider that the operation of the light as depicted in the photograph could constitute a nuisance to the applicants.

The respondent complains that the applicants have attached a light to one of the fence posts dividing the two lots. The light sits at 2.3m in height and is 1.5m from the respondent’s lounge room. The light in question is visible in most of the photographs submitted with the application. Equally, I appreciate that the operation of this light could constitute a nuisance to the respondent, although I consider it would be less invasive than a spot light and its positioning suggests that its primary purpose is to light the applicants’ entertaining area only.

Because no orders have been sought in relation to the lights, I decline to make any. However, I trust that the parties have the requisite maturity to ensure the lights are not operated in such a fashion as to cause a nuisance to the other.

The application is therefore dismissed in its entirety.