Royal Palm [2007] QBCCMCmr 63 (7 February 2007)

Last Updated: 20 February 2007

REFERENCE: 0868-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9098
Name of Scheme:	Royal Palm
Address of Scheme:	973 Gold Coast Highway, Palm Beach 4221

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

The Body Corporate for Royal Palm CTS 9098

I hereby order that the owner of Lot 80 permanently remove the unauthorised brush fencing from the balustrade and/or the balcony of Lot 80 within 10 days of the date of this order. This order is made on the basis that the brush fencing poses a fire hazard in terms of Section 167 of the Body Corporate and Community Management Act 1997. I further order that the application to authorise two representatives of the Body Corporate to enter Lot 80 and remove the brush fencing if the respondent does not remove the brush fencing within 7 days notice of the adjudicator’s order is dismissed

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0868-2006

"Royal Palm" CTS 9098

Application

The applicant body corporate has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act"), quote -

An order stating that the owner of Lot 80 permanently remove the unauthorised brush fencing from the balustrade and/or the balcony of Lot 80 and further in the event this application is upheld that after the owner of Lot 80 having been given seven (7) days notice of such adjudicator's order fails to remove the brush fencing that two (2) representatives of the Body Corporate be authorised to enter Lot 80 for the purpose of removing the brush fencing.

Jurisdiction

Royal Palm Community Titles Scheme (Royal Palm) is a 154 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is designed for residential purposes.

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

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)).

Grounds

The applicant is quoted as follows:

At the Committee Meeting held on 10.03.06 it was resolved at Item 1 under General Business to send a Contravention Notice to the owner of Lots 80 and 81 stating that the unauthorised enclosure of the balustrading with brush fencing contravened by laws 9, 11 & 12(b).

At the Committee Meeting held on 07.07.06 Item (34) under General Business states that the brush fencing has been moved back from the balustrade and the matter will continue to be monitored.

At the Committee Meeting held on 08.09.06 Item (15) under Business Arising from Previous Minutes it was resolved to serve a further notice of contravention of by laws on the owner of Lot 80 requiring her to remedy the breach in 7 days, failing which an application would be made to the Commissioner for removal of the brush fencing from the balcony of lot 80.

On 06.10.06 notice regarding likely future contravention of a body corporate by law and notice of continuing contravention of a body corporate by law were prepared giving Ms Schoch 7 days to remedy the breach

On 09.10.06 representatives of the body corporate, Mrs R Shepherd (Treasurer) and Mr G
Robbins (Ordinary Committee Member), signed the notices under seal and on 10.10.06 the notices were hand delivered to Ms Schoch’s mail box within the building at Royal Palm.

These mail boxes are under video surveillance and staff have verified that Ms Schoch cleared her mail box on 16.10.06.

On 24.10.06 it was confirmed that the brush fencing was still on the balustrading.

The Body Corporate is currently taking action in the Magistrates Court to enforce an Adjudicator’s Order Ref 0340-2000 for the removal of cat/s kept by the owner of Lot 80. It has been reported to the Body Corporate that the cat/s spend some time on the balcony of Lot 80 and are in an unkempt condition with infestation of insect pests which also lodge in the brush fencing.

The body corporate is seeking an order from the Commissioner to remove the fencing on the basis of the by laws being breached in the contravention notices, the prevalence of insect pests lodging in the brush and the diminution in the aesthetics of the building caused by the addition of the brush fencing on the balustrading.

Documents supporting the above grounds have been supplied by the applicant along with the relevant by-laws which are as follows:

9. ALTERATIONS TO LOT

(a) An Occupier must not make a change to the external appearance of a Lot or make any structural alterations to a Lot, except with the consent in writing of the Body Corporate Committee.

(b) A change to the external appearance or a structural alteration to a Lot means, but is not limited to the erection of outside aerials, external blinds or awnings changes to utility infrastructure, the installation of an air-conditioning unit or the enclosure of a patio or balcony.

11. APPEARANCE OF LOT

(a) An Occupier must not hang any washing, towel, bedding, clothing or other article (except on clotheslines provided for the purpose of hanging laundry) on any part of his Lot in such a way as to be visible from another Lot, the Common Property or outside the Scheme Land, except with the consent in writing of the Body Corporate Committee.

(b) An Occupier must not display any sign, advertisement, placard, banner, pamphlet or like matter on any part of his Lot in such a way as to be visible from another Lot, the Common Property or outside the Scheme Land, except with the consent in writing of the Body Corporate Committee.

12. MAINTENANCE OF LOTS

(a) Each Owner is responsible for the interior maintenance and decoration of his Lot.

(b) Each Owner must ensure that his Lot is kept and maintained so as not to allow infestation by vermin or insects or be offensive in appearance to other Occupiers.

A photo of the brush fencing is also supplied. I note that is not standing upright as is the usual installation technique, but rather is lying down leaning against the balustrade. It does not appear to be secured to the building.

Submissions

Submissions were received from the owners of eight other lots. All objected to the brush fencing on the balcony. Their reasons included concern regarding precedent, odour, health, fire, insect pests and vermin. One submission points out that cigarette butts are sometimes dropped from balconies. There are some allegations the fencing is there to conceal cats being kept in the lot.

The respondent was invited to make submissions, however had not responded at the time submissions closed. Attempts to speak with the respondent by phone failed when there was no answer. A final request for submissions was also sent to the second unit she owns in the scheme but there was no response in relation to this application.

Determination

The applicant has sought to approach this issue from the aspect of by-laws about alterations, appearance and maintenance. I have some difficulty in treating the placement of the brush fencing as captured by any one of these by-laws.

In relation to alterations, the nature of the alterations suggested in the by-laws indicate that the alteration must in some way be affixed to the lot, whether the alteration is structural or not. From the photographs supplied to me, I am unable to satisfy myself that the fencing is affixed to the premises at all. The brush fencing appears only to be placed on the balcony and at most appears it may be leaning against the balustrade. In those circumstances, the brush fencing constitutes as much of an "alteration" as placing a push bike on the balcony or garden furniture. I am therefore unable to make an order based on a breach of by-law 9.

By-law 11 addresses the appearance of lots. The ejusdem generis rule of statutory interpretation states 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.

Therefore in By-law 11(a) the words washing, towel, bedding, clothing or other article have created a class of items, perhaps under the general heading of laundry or materials. In By-law 11(b), the words sign, advertisement, placard, banner, pamphlet or like matter have created a class of items such as signage. The placement of fencing (or storage of items) on the balcony in my view does not in my view fall within the classes created by this by-law.

The most appropriate by-law appears to be by-law 12(b) which says that lots are to be kept and maintained so as:

•	Not to allow vermin or insects; or
•	Be offensive in appearance to other occupiers.

The difficulty here is that the by-law centres on the issue of maintenance allowing the presence of vermin or insects and maintenance allowing the appearance to become offensive. I do not regard the leaving of brush fencing on the balcony as a maintenance issue and whether or not it can be classified as offensive in appearance has not been demonstrated in terms of the effect on the appearance of the building as a whole.

I also have some difficulty with the allegations made that the brush fencing is providing a habitat for insects, and therefore vermin. No evidence is offered by the Body Corporate as to why they hold this belief. I sought some information from the World Wide Web in relation to the allegations made by the applicant and a number of those making submissions. Some of the statements made in these web pages, indicate that the materials used on brush fencing in Australia ('Melaleuca Uncinata' ^[1]) may have some insect repellent properties.

However, despite my belief that I cannot make an order based upon any of the by-laws I draw the parties’ attention to the Nuisance provisions contained in Section 167 of the Act:

The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or 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 or the enjoyment of the common property by a person who is lawfully on the common property.

While I am not convinced of the allegations in relation to insects sheltering in the fencing, I am quite concerned with the potential for cigarette butts to become wedged in the fencing if dropped from a higher balcony. The News South Wales Rural Fire Service suggests that brush type fencing is highly flammable.^[2] To that extent then, I am satisfied that the fencing poses a hazard that cannot be permitted to persist within the scheme. I will therefore order that the brush fencing be removed from the balcony.

Section 120(2) of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 provides that where an owner or occupier does not carry out work (that the occupier has an obligation to carry out under an adjudicator’s order), the Body Corporate may carry out the work and may recover the reasonable cost of carrying out the work from the owner as a debt.

However like by-law 12, this Part of the Accommodation Module is directed at property management issues such as common property, maintenance, improvements and insurance. There is no "work" to be carried out in terms of fixing or maintaining some aspect of property in this matter.

Adjudicator’s orders may be enforced through the Magistrate’s Court (see sections 286 and 287) after a person in whose favour the order is made files a certified copy of the order and a sworn statement that a requirement of the order has not been performed with the registrar of the Court.

A person who contravenes an order commits an offence, attracting a potential penalty of up to $30,000 (see section 288). A proceeding for an offence may be taken by:

•	the applicant;
•	a person in whose favour the order is made;
•	the body corporate; or
•	an administrator appointed by an adjudicator in certain circumstances.

I am therefore unable to make orders authorising representatives of the Body Corporate to enforce the order as sought. Enforcement would need to be pursued through the Magistrates Court.

---

^[1] http://www.alldayfencing.com.au/andfinfo2.php and http://www.ausbrush.com/product_range_new_2006.htm and http://www.pir.sa.gov.au/byteserve/agriculture/agfactsheets/vegetation/broombsh.pdf

^[2] http://www.singleton.nsw.gov.au/SiteFiles/singletonnswgovau/Guidlines%20for%20Fire%20Assests%20Protection%20Zone.pdf