Barklya [2008] QBCCMCmr 263 (5 August 2008)

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

I hereby order that Shane Rimington and Tracy Scott-Rimington, co-owners of Lot 1 shall
within six weeks of the date of this order -
a) remove the timber fence or those parts of a timber fence erected by them in February 2006 which are currently situated on common property; and
b) if they wish to keep a fence, erect the fence within the boundaries of Lot 1;
the whole in accordance with a survey plan IS 192767 drawn by cadastral surveyor Robert Bass of Robert Bass Surveys, on 18th January 2007;
I further order as follows -
1. that the fence so erected must comply with the specification given by Shane Rimington to Ross Brown in an email dated 14th February 2006, and which email is given in evidence in this application;
2. that Shane Rimington and Tracy Scott-Rimington as co-owners of Lot 1 shall reinstate the common property outside the boundary of Lot 1 to the condition it was in prior to the fence being erected in February 2006;
3. that the removal of the fence, the erection of the fence within the boundaries of Lot 1, and the reinstatement of the common property shall be carried out at the expense of Shane Rimington and Tracy Scott-Rimington as co-owners of Lot 1;
4. that the maintenance and future maintenance of any fence or part of the fence, existing, to be erected or re-erected in accordance with this order, shall be at the expense of the owners for the time being of Lot 1.

The above order was appealed to the Commercial and Consumer Tribunal. The Appeal No is: KA012-08. This matter was referred back to the adjudicator and a subsequent order was issued ref: Barklya [2009] QBCCMCmr 317.

This is an application dated 13th April 2008 and amended on 29th April 2008 by the body corporate for Barklya CTS 18592 (the body corporate) against Shane Rimington and Tracy Scott-Rimington, (the Respondents), co-owners of Lot 1 in the scheme, for an order that the Respondents remove the front fence that is encroaching on common property and restore the common property to good condition; and pay the cost of removing the fence and restoring the common property.

“Barklya” CTS 18592 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module). There are 10 lots in the scheme created under a Group Title Plan of subdivision.

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)).

SUBMISSIONS

The body corporate says that the Applicants were advised on 23rd February 2006 when building a fence for their property, for which they had received committee approval, that it appeared to encroach on common property, and be beyond the Applicants’ boundary. The chairperson Ross Brown, asked the Applicants to check its alignment. The Applicant Shane Rimington replied by email on 27th February 2006 that he was “sure it [was] fine.” The chairman was given permission by the Applicants to verify the alignment. The encroachment was confirmed by a survey obtained by the body corporate from Robert Bass Surveys in January 2007. The body corporate says that the fence encroaches on common property by up to 2 metres at the widest part.

The body corporate manager Archers, wrote to the Applicants on 23rd May 2007 referring to “the Technical Manual” and a breach of by-laws and “regulations 3.1, and 4(a) and (b)”. The body corporate sought the cost of 50% of the survey under the Dividing Fences Act 1953, and demanded that the fence be removed within 21 days, and a new proposal for a fence be submitted conforming with the by-laws and the Technical Manual.

On 5th February 2008 the body corporate issued a notice of continuing contravention of breach of by–law claiming obstruction of the common property and damage to lawns, in contravention of scheme by-laws 3 and 4, and giving the Applicants 7 days in which to remedy the breach.

The body corporate says that the encroachment prevents other lot owners from having enjoyment of a footpath, and is an unauthorised use of common property.

Submissions were sought from all lot owners in accordance with section 243(2)(b) Act.

Linden Woodward, owner of Lot 5, says that he is concerned about safety since the loss of the footpath forces pedestrians to walk into the roadway near the intersection of three streets, and forces them to step across the kerb which is wide and often slippery. He is concerned about the body corporate’s liability for injury. He also says that it is unjust that any one lot owner can annexe a part of the common property thereby excluding other owners from it, when common property belongs to all owners. The footpath is also necessary for the safety and enjoyment of the scheme by owners and visitors alike.

Pauline Carlton and Deborah Colmer, owners of lot 4, say that the fence was erected prior to them moving into the scheme, but that the issue of the fence is the only source of friction in an otherwise harmonious scheme. They are of the view that the body corporate committee has been very fair and patient in attempting to resolve the dispute.

Ross Brown, owner of lot 6, says the fence continues to be an obstruction of the common property. He says when he was chairman in 2006, his approval did embrace an element of “laissez faire” in order to accommodate the Applicants’ problems because they had a dog which wandered. The approval never contemplated or acceded to the annexation of common property. Permission was granted to build the fence in an email on 15th February 2006. The email said that Mr Brown had checked the specification given by the Applicants with the committee and that it appeared to comply with the scheme’s technical manual. Provided that the owners of Lot 2 had no objection to a boundary fence, the committee had no objection to the proposal. The specification given by the Applicants in an email of 14th February 2006 clearly states that the fence will go “ along our front boundary...”. The onus to verify their boundary was on the Applicants so they should pay one half of the surveyor’s fees.

Shane Rimington for the Applicants says that in 2005 he was ordered by the local authority to construct an enclosure to contain his dog. He put up a temporary enclosure, until he could organise a fence. The intention of the fence was to follow the boundary with perhaps some allowance for existing vegetation. Lot 1 is irregular in shape. He established “external” boundary points through “ found markings”, but could not find the “internal” boundary point. He measured back from the house by looking at building plans in his possession, and taking a midpoint measurement shown on the plan.

Subsequent to the survey conducted by the body corporate, he has established that “the builder has built the house at least 1400mm closer to the road than the house plan called for.” This was the reason that the fence is some distance from the boundary at midpoint and he has been embarrassed at this finding. However, he says that the encroachment is no greater than 1.75m and is not “up to 2 m” as assessed by the body corporate. He admits that the fence encroaches on common property.

In making an order, he asks that consideration is given to the fact that the body corporate does not maintain the common property between the road kerb and the boundary to lot owners ; there is no footpath and all pedestrians use the road; the re-alignment of the fence will only further widen the common property space at its widest point in front of Lot 1; the fence is only ‘out’ at the southern boundary peg by 860mm; there is no real safety issue here; the real issues are personal since he is the only owner with a front fence and not everyone likes that.

He does not believe that he has breached the by-laws by obstructing the common property since people can still walk along the verge which is of varying width and comprises trees, grass, garden beds and rock features. “It is in practical terms an extension of the lot owners’ front gardens,” he says. There is no pedestrian pathway. He provides colour photographs of the verge containing mature trees and shrubs so that it cannot be walked along as a “ footpath” in places. He says that he may have encroached but he has not obstructed.

In respect of the by-law about damaging lawns, he says the body corporate does not maintain the verge area but each lot owner looks after their own bit as if it were their front yard. He has caused no harm or injury to this area, but has maintained it in good condition.

He says, in effect, that the matter is so minor that no order should be made. If an order is made, he will still need some kind of fence for the dog, and time to construct it to maintain its integrity during building. The local authority has requested that he ”keep a lawful enclosure.”

The body corporate refers to a conciliation conducted by this Office. I have no access to any information put forward at the conciliation, nor can make any finding relying on agreements or documents arising from a conciliation. This adjudication application is a new process, where the body corporate must prove its case.

In this matter, the Respondents admit that they have made a mistake as to where their boundary is, and that the fence constructed in February 2006 encroaches onto common property. I understand from the submission of Shane Rimington that he accepts the correctness of the survey obtained by the body corporate in December 2006, but says that the survey plan demonstrates that he has encroached to a maximum extent of 1.75 metres and not 2 metres as alleged by the body corporate.

I have not been shown a copy of the “Technical Manual” referred to by the body corporate in correspondence to the Respondents, and I do not think it is necessary that I consider the Technical Manual for the scheme. However, I have some concerns about the by-laws put forward by the body corporate as being the by-laws for the scheme, and which by-laws were addressed by Mr Rimmington in his submission.

The by-laws for the scheme are not the by-laws appearing at Schedule 4 of the Act. By-laws for Barklya can be found as dealing number T592689N lodged in the Land Titles Registry on 30th March 1992. These by-law remain in force, and appear to be the by-laws referred to by Stephen McCulloch, on behalf of Archers Body Corporate Management in a letter dated 23rd May 2007 to the Respondents. The writer of this letter refers to “regulations 3.1” and “4(a) and (b)” which numbering does not appear in the ‘Schedule 4’ by-laws. It appears to be the ‘Schedule 4” by-laws that were erroneously recited in the Contravention Notice sent to the Respondents on 5th February 2008.

However, the scheme by-laws and ‘Schedule 4’ by-laws are very similar in respect of By-laws 3 and 4. By-law 3.1 of the scheme states –

“3.1 A proprietor or occupier of a lot shall not obstruct the lawful use of common property by any person.”

(a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated upon common property; or

(b) except with the consent in writing of the body corporate, use for his own purposes as a garden any portion of the common property.”

The BCCM Form 10 is not a “prescribed form” in that section 182 Act requires that the continuing contravention notice states particular things, but it does not have to be on a specified form. The contravention notice must state that the body corporate believes that a person is breaching a provision of the by-laws (section 182(4)(a)); state the provision that the body corporate believes is being contravened (section 182(4)(b)); give details sufficient to identify the contravention (section 182(4)(c)); give a reasonable period in which the person must remedy the contravention (section 182(4)(d)); and state that if the person does not comply with the notice, the body corporate might without further notice start proceedings in the Magistrates Court or make an application for dispute resolution with this Office (section 182(4)(e)(i) and(ii)).

I am of the view that the letter of 23rd May 2007 failed in the particular required for section 182(4)(e) Act and possibly in that required for section 182(4)(d) Act. It is not clear that the text of the by-laws, or even the subject matter of the quoted numbers “ 3.1” and “4(a) and (b)” was given to the Respondents, even though the Respondents may have been in possession of a copy of the by-laws and/or the Technical Manual to which to refer.

I find that the contravention notice sent on 5th May 2008 was invalid, since it did not refer to scheme by-laws at all.

However, I address the matter of by-law contravention only because it has been raised and relied on by the body corporate, and the Respondents have made submissions about the by-laws. I do not find the issue of by-laws particularly relevant to this matter, even if, as a result of encroaching on common property, the Respondents have damaged common property to some extent.

The real issue is the encroachment, which cannot be authorised except by a resolution of the body corporate. A special resolution is required where an owner wishes to make an improvement to common property for the benefit of his lot (section 114 Standard Module.) In the matter of an exclusive use being granted, which is the effect of the Respondents fencing off any part of the common property at all for their exclusive use, a resolution without dissent would be required. Both parties agree that this was never the intention. The intention was for the Respondents to construct a fence along their boundary line, and this was agreed to by the committee, acting through the chairman, by email dated 15th February 2006.

The body corporate has not authorised an exclusive use of common property by the Respondents. The body corporate has not authorised that the Respondents make improvements to the common property for the benefit of their lot.

The approval of the committee can only be an approval to change the appearance of Lot 1, or to carry out works or improvements within the boundaries of Lot 1. By-Law 11 of the scheme states that where a proprietor wishes to carry out any improvements or works “on any lot” he cannot do so until plans and specifications showing the nature, height, width, colours and location, as well as landscaping proposals have been approved by the body corporate (the committee.) The committee must respond within 21 days (By-law 11(5)) and shall not unreasonably withhold its consent provided the works comply with the Technical Manual, and otherwise comply with the by-laws.(By-law 11.4.)

I note that there does not appear from submissions to be an objection to the Respondents’ fence itself, (despite the remarks of Mr Rimington in his submission) only to the positioning of it. I am satisfied that the committee authorised the request of the Respondents reduced to writing by email on 14th February 2006, and that there was no understanding that it was to be a temporary measure, or that any conditions, other than the approval of the owners of Lot 2, were attached. I am of the view that to order the removal of the fence entirely would be inequitable, since the Respondents relied on the committee approval.

The error in calculating the Respondents’ boundary line is indeed unfortunate but understandable, where there was no survey peg indicating the width of the lot at the “dog-leg.” It may be that the builder constructed the Respondents’ house not in accordance with plans for the house site. Plans often change between drawing board and construction for practical reasons.

The fence will have to be removed. In addition, it will have to be removed so that the outer side of the fence is within the boundary of the Respondents’ lot since the committee does not have authority to allow a fence “on the boundary” itself, where that fence then becomes a liability between a lot and common property and the body corporate becomes responsible for one half of its maintenance in accordance with the Dividing Fences Act 1953. Such authorisation can only be given by the body corporate at a general meeting by special resolution under such conditions as the body corporate may impose. (Section 114(3) Standard Module.)

If the Respondents wish to rely on the authority which they currently have from the committee, then the limit of that authority is a fence within their own lot. The fence shall be removed and replaced within the boundary of Lot 1 as shown on the survey plan drawn by Robert Bass Surveys in December 2006 and signed on 18th January 2007. The fence shall in all respects comply with the specification given in the email from Shane Rimington to Ross Brown on 14th February 2006. The Respondents shall be entirely responsible for the cost of removal and replacement and for the future maintenance of the fence. The fence must be removed and replaced within six weeks of the date of this order.

The Respondents shall also reinstate to former condition the common property outside their boundary on the kerb/road edge, at their expense, within 6 weeks of the date of this order.

As a final point, I have placed no weight on the inference that the local authority has required the Respondents to build some sort of enclosure in which to contain their dog. It is for the body corporate to approve structures of any sort in accordance with its own Technical Manual and its by-laws. Some structures might also require approval from the local authority, but the local authority cannot require that anything be built by an owner on common property or in contravention of scheme by-laws. The local authority may well have required that the Respondents prevent the dog from wandering, or that the Respondents contain the dog. How that is done is simply a matter for the dog owner, and it places no burden or responsibility on any other person.

Number of Scheme:	18592
Name of Scheme:	Barklya
Address of Scheme:	Barklya Close, KAMERUNGA, QLD, 4878

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Barklya [2008] QBCCMCmr 263 (5 August 2008)