Carrara Park [2008] QBCCMCmr 89 (11 March 2008)

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

I hereby order:

Within seven (7) days of the date of this order, Chad McBain must remove the cardboard boxes and any other discarded items from the rear yard area of Lot 30 and mow the grass on Lot 30 and thereafter keep it regularly mown to prevent it exceeding a height of 10cm;
Within 14 days of the date of this order, the respondent engage a qualified licensed reptile exterminator and a qualified licensed vermin exterminator to carry out an inspection of Lot 30 to ascertain the presence of any snakes and/or rats and, if so, take all necessary measures to eradicate and prevent infestation; and
Within 30 days of the date of this order, the respondent provide to the Body Corporate copies of the invoices of the qualified licensed reptile exterminator and the qualified licensed vermin exterminator detailing the inspections and measures undertaken to detect, eradicate and prevent infestation by rats and/or snakes.

Carrara Park community titles scheme (Carrara Park) consists of 82 lots and common property. The community management statement (CMS) for Carrara Park indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Group Titles Plan 3077.

This application was made by the Body Corporate for Carrara Park (applicant) on 17 October 2007 under the Body Corporate and Community Management Act 1997 (Act), pursuant to Body Corporate Committee Motion 3 passed on 3 April 2007. The applicant has sought orders against Chad McBain, owner of Lot 30 (respondent) in the following terms:

The owner of unit 30 be ordered to comply with section 119 of the Body Corporate and Community Management (Accommodation Module) Regulation 1997 which requires him to maintain the lot in a clean and tidy condition and maintain the parts of the lot readily observable from another lot or common property in a clean and tidy condition by the removal of the derelict vehicle and amusement machines and cleaning up of the lot.

Further that the owner be ordered to abide by by-law 19 and take steps to eliminate all infestations of rats and/or snakes.

Under section 243 of the Act, a copy of the application was provided to the respondent and all owners with an invitation to respond to the application. Although no submission was received from the respondent, submissions were received from seven (7) Lot owners including the owners of Lot 1, John and Amanda Harvey, in their capacity as Managers of Carrara Park Townhouses (the Managers).

The Office of the Commissioner for Body Corporate and Community Management (Commissioner’s Office) have endeavoured by various means to ascertain a current address and/or telephone number for the respondent to confirm that he received the application and invitation to make a submission. Such endeavours have encompassed:

Accordingly, it has been impossible to confirm receipt by the respondent of the application and invitation to respond posted under cover of the Commissioner’s office letter dated 25 February 2008 to his last known address Unit 30/125 Pappas Way, Carrara.

The Commissioner’s Office telephoned the Managers on 26 February 2008 in order to clarify certain aspects of their submission and to ascertain the nature and extent of any continuing contravention.

The Commissioner’s Office telephoned the Body Corporate Manager (BCM), Evelyn McNeil on 27 February 2008 in order to clarify photographs accompanying the application.

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

The application relates to the applicant’s endeavours through repeated requests, both written and verbal, to have the respondent attend to cleaning the car parking and rear garden areas attached to Lot 30. The facts of the dispute, as outlined in the application and submissions, are as follows.

On 14 February 2007 the BCM received from the unit complex Managers a number of photographs depicting the rear yard and car parking areas of Lot 30. The BCM subsequently lodged with this application on 17 October 2007 copies of four of such photographs which, having regard to the subsequent course of events outlined below, have been rendered out-of-date.

By letter dated 14 February 2007 addressed to the respondent at Lot 30 where he was then residing, the Body Corporate requested the respondent to clean up the Lot in accordance with his responsibilities under the by-laws. During the telephone conversation with the Commissioner’s Office on 27 February 2007, the BCM clarified that contrary to information contained in section 9 of the application, no photographs accompanied this letter dated 14 February 2007.

The Managers subsequently in a face-to-face discussion with the respondent raised the issue of cleaning Lot 30, however, he (the respondent) denied receiving any correspondence in this regard from the Body Corporate.

On occasions one or more occupants of neighbouring Lots reported to the Manager sighting rats and snakes in or emerging from the Lot 30 rear yard area posing a health hazard and danger, especially to young children and elderly people in the unit complex.

According to the submission of one Lot owner, “the back of the property is unfenced and looks like the local garbage”.

At a Body Corporate Committee meeting on 3 April 2007, Motion 3 was passed authorising the BCM to:

A ‘Notice of Continuing Contravention of a Body Corporate By-law’ dated 3 April 2007 addressed to the respondent at Unit 30, Carrara Park 125 Pappas Way was sent by the BCM. That Notice was expressed in the following terms:

TAKE NOTICE that the body corporate has reasonable grounds to believe that you are contravening the following by-law:

Section 119 of the Body Corporate and Community Management (Accommodation Module) Regulations 1997, requires that an owner or occupier of a lot must maintain the lot in good condition and must maintain parts of the lot readily observable from another lot or common property in a clean and tidy condition,

By-law 19 – all lots shall be kept clean and all practicable steps shall be taken to prevent infestation by vermin and/or insects.

You have amusement machines at the rear of your lot and un-roadworthy vehicles stored in your car parking areas detracting from the appearance of the lot and preventing the required maintenance of the lot. The grass is now estimated at 2 foot high and snakes and rats have been seen coming from the property.

You are required to cease the contravention within 7 days of receiving this notice.

In or about August 2007, the Managers observed the respondent’s parents, Mr and Mrs McBain, arrive at Lot 30 and assisted the respondent to move out of Lot 30. According to the Managers, Mr McBain stated that his son Chad was shifting to reside with them (Mr and Mrs McBain). The Managers approached and discussed with Mr and Mrs McBain the issue of removing the vehicles and amusement machines. Despite assurances to the contrary from Mr and Mrs McBain, that did not occur with the exception of one of the two unregistered vehicles in question, a small blue car, which it appears was removed around that time.

At that time, an unidentified young woman was observed to move into and take up residence in Lot 30. According to the submission received from the Managers of the unit complex, as clarified during the telephone conversation with the Commissioner’s Office on 26 February 2008, this woman remained in occupation for a relatively short period until an unspecified date later in August 2007 and attempts to establish her identity prior to her departure proved unsuccessful. After the departure of this woman, the premises were unoccupied for “a couple of weeks” whilst the applicant’s mother carried out some renovations.

It appears that since sometime in September 2007, Lot 30 has been occupied by an unidentified male person who remains the current tenant.

During one visit to Lot 30, Mrs McBain refused a request by the Manager for her address and telephone number so that it could be given to the Body Corporate for purposes of corresponding with the respondent. Instead, Mrs McBain stated that she would herself advise the Body Corporate of such details. This did not occur and current contact details for the respondent and/or his parents remain unknown.

An attempt was made on one unspecified occasion to mow around the machinery and parts in the rear yard area.

During the telephone conversation with the Commissioner’s Office on 26 February 2008, the Managers clarified that since lodgement of this application on 17 October 2007, the rear yard has been cleared of all the amusement machines, machinery parts and other items, although there remains some discarded card board boxes and the grass has regrown and remains overgrown to an estimated height of 60cm in parts.

According to the submission received from the Managers, as clarified during the telephone conversation with the Commissioner’s Office on 26 February 2008, the respondent was observed to return to Lot 30 on one unspecified occasion to collect mail. Some days later, it appears in about late November – early December 2007, the car parking area was cleared of the second unregistered vehicle, a black XC Ford sedan, although it was replaced with another vehicle, an Holden Statesman (maroon/silver) displaying registration plates but its current state of registration and roadworthiness remains unknown.

According to the Manager and the submissions of various other Lot owners, concerns are held about the appearance of Lot 30 having a detrimental effect on the viability of renting neighbouring units for the same rent as other units as well as the sales value of all properties in the unit complex, not just those in the immediate neighbourhood of Lot 30.

I am satisfied that this is a matter that falls within the legislative dispute resolution provisions.[1]

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[2].

The obligation for maintenance of a lot arises under section 119 of the Accommodation Module and By-law 19 for Carrara Park.

Firstly, in relation to section 119 of the Accommodation Module, the maintenance responsibility is twofold:

An “occupier” of a lot included in a community titles scheme is defined as:

In other words, essential to the concept of “occupier” is a person who is in actual residence of or conducts a business on or from a lot.

Notably, for purposes of section 119, a distinction is drawn between the responsibility of an “occupier” to keep externally observable parts of a lot in a “clean and tidy condition”, on the one hand, and that of an “owner” to maintain a lot “in good condition”. This distinction points to a difference between the respective obligations. To my mind, the reference to “clean and tidy condition” is more suggestive of matters relevant to general hygiene and aesthetic appearance whilst “good condition” is more a reference to maintenance of the working order or state of repair of the lot. In the normal course, whereas painting, for example, would be a matter within the scope of the latter, the removal of refuse or garbage accumulated in the usual course of daily living and occupation of a lot would be in contemplation of the former.

Perhaps less clear are matters like lawn mowing, tree trimming and general yard and garden maintenance which, in the absence of an “occupier” as defined above, if left unattended could not only detract from the general aesthetic appearance and hygiene of a lot but could also cause a deterioration of plumbing, fixtures, fittings and/or structures or otherwise pose a threat or danger to the lot or any neighbouring lots in terms of fire, extreme weather events or infestation of vermin. For that reason, I adopt the view that subsection 119(1) and subsection 119(2) are not necessarily mutually exclusive and, depending on the peculiar circumstances of any particular case, the obligation of an “owner” to maintain a lot in “good condition” may include attending to matters that arguably go to keeping in a “clean and tidy condition” those parts of the lot readily observable from another lot or common property. In other words, the apportionment of respective responsibilities as between an “occupier” as defined above and an “owner” may vary according to the particular circumstances and, indeed they may overlap. To conclude otherwise could conceivably lead to an absurd situation in the event of there being no “occupier” (as defined above) for an extended period during which, for example, the lot becomes completely or substantially overgrown with vegetation and/or the owner uses the lot, including parts readily observable from another lot or lots or common property, as a repository for all manner of discarded items in working/non-working or usable/usable order. In other words, contending that such matters are exclusively relevant to keeping in a “clean and tidy condition” those parts of the lot readily observable from another lot or common property as opposed to maintaining the lot in “good condition”, the owner could effectively avoid any responsibility whatsoever for the situation.

Secondly, pursuant to By-law 19 for Carrara Park, without explicitly apportioning responsibility between owners and occupiers:

all lots shall be kept clean and all practical steps shall be taken to prevent infestation by vermin and/or insects.

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This and all other By-laws are included as part of the community management statement for the Carrara Park community titles scheme.[6] Each owner, being a member of the body corporate, each occupier of a lot in the scheme and the body corporate are bound by the Carrara Park community management statement and therefore the By-laws.[7]

The Body Corporate is required to enforce the community management statement, including the by-laws.[8] Accordingly, the Body Corporate is obliged to enforce By-law 19 against lot owners and occupiers when there is evidence of non-compliance. In other words, the responsibilities arising under By-law 19 are joint and severable as between owners and occupiers of lots.

At all relevant times the respondent was and remains the owner of Lot 30. I am satisfied on the available evidence that prior to August 2007 the respondent was also the occupier of Lot 30. However, accepting the evidence of the Managers of the unit complex, the respondent moved out of Lot 30 on an unspecified date in August 2007 to reside elsewhere with his parents. Since then, again accepting the evidence of the Managers, apart from a short period of weeks in about August-September 2007 during which the respondent’s mother undertook some renovations, Lot 30 has been and continues to be occupied by a person or persons other than the respondent.

I note the advice of the BCM on 27 February 2008 that the photographs accompanying the application depicting the condition of the rear yard and car parking areas are now out-of-date, as indeed is much of the information relied upon in the application as constituting a continuing contravention of By-law 19. In particular:

Dealing with the latter aspect first, irrespective of its state of registration or roadworthiness, in the absence of reliable independent evidence that the condition and appearance of the vehicle is other than clean and tidy or that there is, for example, a substantial oil leak emanating from the vehicle or the vehicle is causing or contributing to an infestation by vermin and/or insects, I am not satisfied that the mere presence of the vehicle in the Lot 30 car parking area since late November – early December 2007 provides evidence of a continuing contravention of By-law 19. Likewise, nor is it capable of constituting evidence of a breach of section 119(1) or section 119(2) of the Act.

I next turn to consider the present state or condition of the rear yard area. The more recent removal of all the amusement machines, machinery parts and other items would doubtless have had the effect of alleviating some if not much of the concern expressed about the rear yard area in terms of its appearance, cleanliness and infestation by rats and snakes. Notwithstanding, I am satisfied that the presence of discarded cardboard boxes, whatever their quantity and condition, in combination with the majority of the rear yard area comprising grass overgrown to an estimated height of 60cm in parts represents a failure to keep the lot clean and, rats and snakes having been sighted in or emerging from the rear yard area, a failure to take all practical steps to prevent infestation by vermin.

Such failure, in my view, constitutes non-compliance with By-law 19. Being the owner and, for reasons set out above, being bound by its provisions, I am satisfied that the respondent is in breach of By-law 19.

The rear yard area of Lot 30 being readily observable from another lot, it follows that the present occupier of Lot 30 is also in breach of section 119(1) of the Act.

In determining whether or not, by reason of the condition of the rear yard area, the respondent is in breach of section 119(2) of the Act, for reasons set out above I consider that regard must be had to the particular circumstances. In this regard, as a matter of common experience and logic, the presence of rats and snakes is not a matter that can be divorced from the overgrown state of the grass both of which, according to the chronology of events, pre-date the current occupancy of the lot commencing sometime in September 2007. In fact, apart from an attempt on one unspecified occasion only to mow around the machinery and parts previously located in the rear yard area, the present overgrown state of the grass and the presence of rats and snakes are a continuation of ever present features of the respondent’s occupancy of the lot throughout 2007 prior to moving out in August of that year. To the extent of the relationship over such an extended period of time between the overgrown state of the grass and the presence of rats and snakes posing a health hazard and danger extending beyond Lot 30, I am of the opinion that these are matters not merely detracting from the cleanliness or hygiene and tidiness or aesthetic appearance of the lot but also constitute a present and ongoing failure by the respondent as owner to maintain the lot in good condition.

Accordingly, I am satisfied that the respondent is in breach of section 119(2) of the Act.

In the circumstances I am satisfied that in respect of the rear yard area of Lot 30 the respondent has not discharged his responsibilities arising under both section 119(2) of the Act and By-law 19. Accordingly I order that the respondent:

Previous warnings and notices regarding the subject matter of this application were posted to the respondent at his Lot 30 address at times when he was residing there. To the extent that the respondent received and ignored or was tardy in partially complying with such warnings and notices, the potential exists that he may consider ignoring or delaying compliance with this order. I caution him against this.

If the respondent does not comply with this order, it can be enforced against him in the Magistrates Court.[9] Enforcement proceedings in the Magistrates Court do not provide the opportunity to review the order or re-hear the merits of the original application.

While the breach of a by-law contravention notice can result in a penalty of up to 20 penalty points (currently $1,500), a breach of an order is an offence attracting a fine of up to 400 penalty points (currently $30,000).[10]

[1] See sections 227,228, 276 and schedule 5 of the act
[2] See section 284(1) of the Act
[3] See section 119(1) of the Accommodation Module
[4] See section 119(2) of the Accommodation Module
[5] See Schedule 6 to the Act
[6] See section 66(e) of the Act
[7] See section 59 (2) of the Act
[8] See Section 94(1)(b) of the Act
[9] See sections 286 and 287 of the Act
[10] See section 288 of the Act

Number of Scheme:	19992
Name of Scheme:	Carrara Park
Address of Scheme:	125 Pappas Way CARRARA QLD 4211

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Carrara Park [2008] QBCCMCmr 89 (11 March 2008)