Elanora Place [2009] QBCCMCmr 260 (21 July 2009)

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

I hereby order as follows –

that Valeri Kozmine, Respondent in this application and owner of Lot 1, must within six weeks of the date of this order, provide a report to the Applicant Benjamaporn Limphakdee, owner of Lot 2, from a qualified plumber that there is installed in the common property a proficiently laid new water pipe running from the water-meter box of Lot 2 into the boundary of Lot 2, which water pipe is situated outside an extension now built by the Respondent, and in such a way that the Applicant can authorise her own plumber to connect to the new pipe within the boundary of Lot 2 for the use of Lot 2;
that Valeri Kozmine, owner of lot 1, must within two weeks of the date of this order provide the Applicant Benjamaporn Limphakdee with a key to the side gate as more particularly described in the reason for decision, and allow her, her agents, tenants and licensees unimpeded access to the electricity meter box;
that Valeri Kozmine, owner of Lot 1, must allow access to a tradesman chosen by the Applicant Benjamaporn Limphakdee to erect a fence or fence panel of her chosen specification on the rear boundary of Lot 1 and Lot 2;
that Valeri Kozmine, as owner of Lot 1 shall pay one half the share of the fence to be erected in accordance with the Dividing Fences Act 1953.

I further order, that in all other respects, the application is dismissed.

This is an application dated 11th December 2008 and amended on 23rd December 2008 by Benjamaporn Limphakdee, (the Applicant) owner of Lot 2 in the scheme, against Valeri Kozmine (the Respondent), co-owner of Lot 1, for orders as follows :

The Applicant also seeks approval for her to retain her existing carport as it protects her vehicle from the weather.

“Elanora Place” is a community title scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are two lots in the scheme created under a Building Unit 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)).

I am aware that a conciliation was attempted through this Office. However, I have no knowledge of what was said in the conciliation session which remains confidential, and in this application for adjudication, it is up to the Applicant to prove her claim “de novo” that is, this is an entirely new application which will be assessed on its merits.

This Office has no jurisdiction to prevent anti-social behaviour. A matter of bullying or harassment should be referred to the police or action taken in the civil registry of the courts.

The Applicant says that the Respondent has built an illegal extension, and in doing so has poured concrete foundations over the sewage pipes and the Applicant’s water pipe.

On 9th February 2008, the Applicant and Respondent discussed the removal of a timber fence dividing the two back yard areas because the Respondent said he wanted to build a high wall, and the Applicant with some reluctance agreed to this. The Respondent took down the fence but erected a timber-framed extension which the Applicant did not know about beforehand. The extension, completed in April 2008, blocks the wind and sun from getting into the Applicant’s back yard and when it rains, because there is no gutter, water enters the Applicant’s premises. The Respondent has not replaced the boundary fence between the two lots, which he removed to complete the extension. Prior to the extension being built, each lot had a covered back courtyard (pergola) with a dividing fence up to a height to provide privacy between but not extending to the glazed roofing.

She provides a copy of a letter from a building certifier, GMA Certification Group Pty Ltd, to the Respondent which points out that the rumpus room extension is not built in accordance with approved plans. The letter is undated.

The Respondent has also built a colourbond ‘enclosure fence’ which incorporates common property and denies the Applicant access to the electricity meter box. Before the erection of the boundary fence the area which is common property with certain rights of exclusivity to the Respondent, was unfenced with open access. Now there is a gate which is kept locked by the Respondent, and she has to ask permission from the Respondent to enter.

The Applicant says that in 2003 when she purchased Lot 2, with the agreement of the Respondent she installed a separate water meter, for which she paid. Previously, the two lots had shared a water bill calculated from one meter. Her plumber, on looking at the job, decided to connect the new water meter to the old pipes, which ran into the Applicant’s lot; and connect the new pipework to the Respondent’s (old) water meter. Since that time, the Respondent has laid concrete over both these pipes. When the old pipe started to leak, around Christmas 2007, since the old pipe was now the Applicant’s water pipe alone, the Respondent requested that she pay for the repairs, which she did. She does not think that it is fair that she paid for the new pipework, yet was left with the repairs to the old pipework.

Since then the Respondent has built his extension over the concreted sewage and water pipes, so that the pipes are even more inaccessible, and to get to them will require excavating the concrete of the extension floor. She wants the Respondent to authorise a professional plumber to “connect the new water pipe to Unit 2 water meter and extend the water pipe through to the boundary fence so” she can organise the pump to connect the new pipe to her Lot.[1]

She provides a colour-coded sketch plan of the water and sewage pipes, which shows that both sets of pipes for Lot 2 are placed partly in the exclusive use area of Lot 1, and under the new extension built by Lot 1.

The Respondent submitted relevantly that in 2003, the Applicant accepted the solution suggested by her plumber because it was the cheaper option. He proposed in July 2008 by letter to the Applicant that he lay a new pipe from her water meter (the old one) across “his land” up to the border of Lot 2. On 19th August 2008 a plumber laid a new pipe from Unit 2 water meter across “his lot” up to the border of Lot 2. The 18 metres of pipe cost him $21, and the Applicant can connect it to her house from there. He provides a sketch plan which appears to conflict with the Applicant’s sketch plan, and shows that the water pipe runs from Lot 2’s meter box, outside the built area of the Respondent’s extension, and into Lot 2’s exclusive use area pergola area by 60cm.
In respect of the electricity box, he says that there has never been a problem with Origin having access to the meter box, and that the meter box is on “his lot.” He says the electricity meter is in his “private territory.” He does not believe that the Applicant should have access to the meter box unless she is an electrician, although in a letter sent to the Applicant on 25th July 2008, he said “... you can have access to the meter at any time as the gate is never locked.”

In respect of the replacement of the separation fence between the two properties, he has got a quote for installation from a handy man, but not a licensed builder, which the Applicant requires. The job is too small for a professional. He provides a photograph (Photo 23) showing a panel of colour bond fencing situated between Lot 1 and Lot 2. He thinks that the Applicant should pay for 50% of this dividing fence or reimburse him but she has refused to do so. She has said by letter dated 5th November 2008 that she will pay the balance due when the work is done by a licensed builder to her satisfaction. He has put half the fence up because he did not want to look at a hole in the fence. He says that he has bought a new dividing fence but not yet been reimbursed one half the money by the Applicant.

The Respondent on 3rd June 2009 made an uninvited submission stating that his extension had received building final works approval. The Council says that no further action will be taken.

He also provides a copy of a signed letter from the Applicant dated 30th July 2003 saying that she has no objection to the construction of the fence “on the part of street on a part of a house” (sic) belonging to the Respondent.

He complains that the Applicant has constructed a pergola without council permission, or body corporate permission and without guttering, and that her carport is also illegal. The pergola of Lot 1 is situated too close to neighbours of the scheme at 6 Telopea Street and therefore infringes Council building requirements.

He says that he has maintained the common property and mowed the grass, and repaired a wooden fence without payment. He is concerned that the Applicant does not share the duties and/or costs involving the common property. He would like to claim the costs of gardening and maintenance from the Applicant.

He also provided two photos of the width of the driveway and cars parked on it. He provided 18 photos of cars parked at other schemes.

On 26th May 2009, I sought further information from the Applicant who had been overseas. By letter dated 5th May 2009, but faxed to this Office on 5th June 2009, the Applicant provided the details requested.

She says that when she purchased Lot 2 on 4th April 2003, the pergola for Lot 2 already existed. She built her carport in August 2005 because it was difficult to drive her car into the existing garage. Council approval has not yet been granted for the carport, but the application was made retrospectively in April 2009. She confirms that her property is currently for sale, and provided helpful sketch plans, and a copy of a notification of change of by-laws for the scheme, made pursuant to a resolution without dissent passed by the body corporate on 8th April 1987 and recorded on 20th July 1987.

By-law 22 entitles the owner of Lot 1 to prohibit access to part of the common property shown in red on a plan BUP No 7771 marked “A” and to use that portion of the common property for his own purposes “but any person who has a genuine right of access to the meter box included in that part of the common property shall be entitled to reasonable access to that meter box.”

By-law 23 entitles the owner of Lot 2 to the exclusive use and enjoyment of all that part of the common property shown in blue on the same plan marked “A”. The plan marked “A” shows an easement in favour of the Council, “Easement C”, running through that part of the common property, over which the Applicant has exclusive use. The Applicant’s carport, as shown on an architect’s floor plan entitled “Existing Pergola and Carport” and drawn by B.G.Plans and dated “20:05:084” (sic) appears to be constructed partly within the easement, although this is not confirmed by the drawing. The pergola is constructed within the Applicant’s exclusive use area.

The Applicant provides a copy of a letter sent “to whom it may concern” on 11th November 2008 asking the body corporate committee to “consider” the carport. She pointed out that the carport “was built on my property” and that it did not affect the Respondent in any way.

The photographs and sketch plans show that Lot 1 has taken an “L-shaped “ portion of the common property of the driveway and surrounded it with a colourbond fence in which there is a colourbond gate. The fence and gate extend beyond the area delineated in red on the plan marked “A”. The fence, including the gate, has three sides, the long side extending down the boundary of the scheme facing Telopea Street.

In this matter it is clear that disputes arise because both owners have in the past treated the scheme as if it was in fact divided between them as their wholly owned property. They continue to do so. The Respondent points out that the Applicant’s real estate agents are marketing Lot 2 saying “no body corporate” but this is exactly how the two owners in the scheme have treated the scheme. Unfortunately many lot owners in duplexes do this, and the result is nearly always a dispute because the buildings are designed and authorised by the local authority only to be operated as a body corporate and so governed by the Act. It does not appear that there are any general meetings held or as if there is an administrative fund or sinking fund for the scheme. I have not been advised of the position about insurance. There seems generally a great lack of understanding and knowledge between these two owners of their rights and responsibilities under the legislation, each accusing the other of erecting illegal structures.

Whilst there have been accusations on both sides about the behaviour of the other owner, this dispute application seeks outcomes only in respect the water pipe to Lot 2; access to the electricity meter box; and a resolution of the currently missing fence between Lots 1 and 2. I shall start with the meter box.

The electricity meter box
In a community title scheme, there is always some “common property” which is owned jointly by the lot owners in the scheme. All the land immediately outside the walls of the units, that is without the extension (Lot 1), pergola or carport (Lot 2), is common property as shown on BUP 7771 lodged in the Land Titles Registry. The common property contains an easement to the local Council “ for drainage purposes”, also as recorded in the Land Titles Registry.

In 1987, the body corporate, that is the two then owners, agreed between them that an exclusive use area over common property was to be granted to Lot 2. The area is shown delineated in blue on a Plan marked “A” (the blue area) and recorded in the Land Titles Registry. That area corresponds roughly to the area on which the pergola and the carport now stand. At the same time, by By-law 22, the owner of Lot 1 was not granted an exclusive use over the area delineated in red on the plan, (the red area) but was granted the right to exclude others from that area save for any person with a genuine right of access to the meter box. I expect the by-law was worded in this way, because it is unlawful for a body corporate to grant an exclusive use area over body corporate infrastructure, such as a meter box.[2]
Utility infrastructure is, and remains, common property, and is the responsibility of the body corporate, that is, in a body corporate consisting of only two owners, the meter box is the joint responsibility of both owners equally provided that any repair or replacement is not caused or contributed to, by only one lot owner. Contrary to the Respondent’s view, it is not on “his private property” but remains common property. He is entitled to prohibit access to all persons, except those persons who have a genuine right of access to the meter box, and to use the area for his own purposes, but that does not give him the right to build on common property without the approval of the body corporate. “Common property” belongs in equal shares “as tenants in common” to the lot owners, and cannot be absorbed by either owner into the ownership of their respective lots.[3] Nor can a lot owner enclose or fence off an area of common property without the consent of the body corporate.

The meter box is the property of the Applicant, as it is the property of the Respondent, and they must both have access to it. The meter box does not belong to Origin or any electricity provider. The Applicant does not have to say why she needs access to the meter box, only that it is her right to inspect it whenever she wishes to do so. It might be a question of a “tripped” switch, or to see if the box is in good condition. By by-law 22, she (and others such as her electrician or her tenant) must be given “reasonable access”, that is, the owner for the time being of Lot 1 must be “reasonable” in the giving of the access, and the owner for the time being of Lot 2 (and her representatives) must be “reasonable” in exercising the access. What is reasonable might depend on the circumstances.

In my view, it would not be reasonable for the Applicant to have to ask the Respondent for a key whenever she wished to check her meter box. There might be an emergency and the Respondent might be out. It could be dangerous for an electrician not to be able to gain access to the meter box. The Respondent must therefore provide the Applicant with a key to the side gate, and unimpeded access to the meter box and I so order. The Applicant may give a copy of the key to any tenant of Lot 2. A tenant is a person with a “genuine right of access” to the meter box and cannot be prohibited.

The fence between Lot 1 and Lot 2
The fence which the Applicant is concerned to have restored is the one which divides her lot from Lot 1 at the rear and which used to be between the two covered courtyards/pergolas. This fence was removed when the Respondent started his extension. The Applicant has provided a quotation from Down 2 Earth (Mark) dated 6th October 2008 for posts and colourbond fencing for $340 and the Respondent has provided a quotation dated 18th April 2008 from John Laycock for $450 for the supply and installation of two colourbond panels. There is a further quotation from Maintenance Direct dated 10th October 2008 for $280 for the installation (only) of 5 metres of colourbond fencing. All quotations are now out of date.

On 7th October 2008 the Applicant wrote to the Respondent to say that she accepted the quotation from John Laycock, and asking the Respondent to perform this work. The Respondent says that the Applicant should pay him the money before he does the work. The Applicant says that she wants the work to be done by a licensed BSA builder and to be approved by her before she pays.

The Dividing Fences Act 1953 which applies to the Act, requires that neighbours share the costs of dividing fences. In this matter, it was the Respondent who removed the Applicant’s fence, so that he could build an extension. The Applicant says that she agreed to the removal of the old wooden dividing fence. However there is no other evidence of the agreement. It seems doubtful to me that the Applicant would have agreed that the fence would come down and never be replaced. The Respondent says that he will replace the old timber fence if required to do so, but it appears that the parties have between them decided that they would prefer a new colourbond fence or panels.

Because of the agreed improvement to the fence, the Applicant should pay one half of the boundary fence. It appears to me that none of the three quotations received, including that by Down 2 Earth (Mark) demonstrated that the tradesmen were licensed builders, that is, none of them had a BSA number on their quotations. The Respondent says that the job is too small for a licensed builder, but can be done by a handy man. In my view the work could be done by a proficient tradesman, without the necessity of being a licensed builder, since fencing is not necessarily a skill which requires a builder’s expertise, and it seems to be quite a small job.

So that the Applicant is satisfied with the chosen builder, I will order that she can choose the tradesman, and the specification for the fence to be erected. She must pay one half and the Respondent must pay one half to the chosen tradesperson, and I make an order therefore that the Respondent merely pay for one half of the fence, as chosen by the Applicant.

If the choice is colourbond panels, it appears that the Respondent may already have paid for half of the fence. It also appears that the Respondent may already have purchased sufficient colourbond panels to complete the job. If the Applicant’s chosen tradesperson is able to use this panel or panels, then the Applicant should pay to the Respondent one half of the cost of the materials against receipts provided by the Respondent. However, there is no requirement for materials purchased by the Respondent to be used for the job if these materials are not chosen by the Applicant, not suitable or not now usable by the chosen tradesman. The Respondent must allow the tradesman access to erect the fence, if such access is required.

The water pipe
It is not disputed that the Applicant has, in erecting his extension, laid a concrete base over water pipes and sewage pipes used partly by Lot 2. Generally, utility infrastructure, as described above in the case of the electricity meter, is common property. The exception to this is where the utility infrastructure, in this case the water pipes and sewage pipes, services only one lot, and is within the boundaries of the lot, and is located other than within the boundary structure for the lot.[4] A “boundary structure”, for a lot means a floor, wall or ceiling in which is located the boundary of the lot with another lot or common property. The other exception is where the lot owner has placed utility infrastructure in the common property, with the agreement of the body corporate, and the body corporate does not take ownership of that utility infrastructure. This might be the case, where an owner had put in cable TV for example. The cable would remain the owner’s responsibility.

From the plans and history supplied to me, it appears that the Applicant’s water pipe services only her lot, since it is connected to her water meter, and runs into her lot; but that the part of the pipe of concern is not located within the boundaries of her lot, nor within a boundary structure for her lot. The pipe which she describes on her plan as now connected to her water meter is also the originally placed pipe, and is not in a different position, or something new placed there by the Applicant. The water pipe, between the water meter box and Lot 2, where it lies under common property, remains the common property of the body corporate. The water pipe is therefore the responsibility of the body corporate to maintain, and should have been paid for by the body corporate when it needed repair in 2007.

In a duplex, if, contrary to the legislation, there is no administrative fund or sinking fund maintained by the body corporate, a duty to repair common property falls on the two owners to pay for repairs in equal shares.

The Respondent says that on 19th September 2008, a plumber laid “a new pipe” from Lot 2’s water meter “across his land” up to the border of Lot 2. This cost him $18 of materials, but since he did not pay half the cost of the repair bill in 2007, I make no order as to this amount. The Respondent’s sketch shows the new pipe placed in a direct line between Lot 2’s meter box and going into Lot 2 by 60cm. This direct line takes the pipe outside the Respondent’s new extension.

The Applicant’s plan shows the siting of “her” pipe, the old pipe, in a direct line from Lot 2’s meter box to Lot 2, to pass under the Respondent’s extension.

If the Respondent had put a “new” pipe (in lieu of the old pipe, ie had simply renewed the pipe, and not changed the position of it) in the position drawn on the sketch plan and 60cm into Lot 2 for the benefit of the Applicant, then she would have had no need to make her application to this Office in respect of this issue on 11th December 2008.

Perhaps the only dispute in reality between the parties here is that the Applicant needs to be assured by a professional plumber that the work as described by the Respondent has been carried out.

Put into context, the Respondent has laid concrete over body corporate pipes. In order to remedy this situation, the Respondent must provide access to those pipes whenever they need inspection of repair. If the Respondent has now re-routed the water pipe in common property so that it no longer passes under his extension, it can be held that he did this with the consent of the body corporate.

If the Respondent has not re-routed the water pipe which provides water to Lot 2, then he must arrange a plumber to do so in the very near future.

Either way, I shall order that the Respondent must, within six weeks of the date of this order, provide a report to the Applicant from a qualified plumber that there is in existence a proficiently installed new water pipe from her water meter box into the boundary of Lot 2, which is situated in the common property and outside the extension now built by the Respondent, and to which the Applicant can then authorise her own plumber to connect to for the use of Lot 2.

Whilst outside the boundaries of Lot 2, the body corporate (ie. both owners) remains responsible for the maintenance and repair of that new water pipe in accordance with section 20 Act. The new pipe is replacing a former pipe which was also a body corporate responsibility and is not an additional service installed for the benefit of the Applicant’s Lot.

General Remarks
The Respondent should be aware that there is nothing recorded in the Land Titles Registry to show the existence of the extension to Lot 1. Whilst the extension may have been approved by the Council as to the building specifications etc, it has not been approved by the body corporate and it is a building constructed on the common property. Even if Lot 1 has exclusive use over that area, structures cannot be erected on exclusive use areas without the approval of the body corporate. Any improvement to the common property for the benefit of an owner is required to be approved by the body corporate and maintained in a register of improvements, so that whenever either owner sells, prospective purchasers can inspect body corporate records and see that current structures have been approved. If this is not done, future owners of Lot 2 could seek the removal of the extension; equally future owners of Lot 1 might be asked to remove the extension.

Furthermore, the area where the colourbond fence commences nearest to Lot 1 and which contains the gate, is a part of the common property over which the Respondent does not have any special privileges (like exclusive use) in respect of Lot 1. It is outside the “red area”. The Respondent has simply erected a fence on common property, and could be asked to remove it by subsequent owners of Lot 2. In my view the letter signed by the Applicant on 30th July 2003 is not sufficient to satisfy the requirements of section 163 Standard Module[5].

The Applicant has sought the consent of the body corporate for her carport through a letter dated 11th November 2008 and addressed “to whom it may concern” at this Office. An adjudicator has the power to approve an improvement to common property if, for example, the body corporate had unreasonably refused to give approval. However, in this instance, the carport appears to be built partly on a Council easement, and the Applicant is awaiting advice from the Council.

As in the case of the Respondent’s extension, even if the Council grants approval for a structure, if it is not approved by the body corporate, its existence may be successfully challenged, and the end result might be an order for demolition from this Office.

It seems to me that, if Council approval is given for both structures, then it might be beneficial for each lot owner to approve the structures of the other, and record such as a resolution of the body corporate at a general meeting.

If the Respondent wishes the owner of Lot 2 to make contributions towards the gardening budget he should raise this at a body corporate meeting, agree a sum, and record that in the body corporate records. A duplex is no different from any other body corporate in that it must have one meeting a year, record decisions, keep books, and insure the two lots as one building. Both the Applicant and the Respondent might find harmony is restored if they obtained some information about the way to run a community titles scheme from Fact Sheets available from this Office on freephone 1800 060 119, and/or by looking at the training available on-line at www.bccm.qld.gov.au

[1] See letter 7th October 2008 from the Applicant to the Respondent
[2] Section 177(1) Act. Prohibited matters for exclusive use by-laws
(1) An exclusive use by-law must not give exclusive use to the rights and enjoyment of, or other special rights about, utility infrastructure that is common property or a body corporate asset.

(a) cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services; and
(b) a device for measuring the reticulation or supply of a utility service. (Dictionary-Act)
[3] Section 35(1) Act.
[4] Section 20(1)(b) Act
[5] Improvements to common property by body corporate

Number of Scheme:	7494
Name of Scheme:	Elanora Place
Address of Scheme:	4 Telopea Street Labrador QLD 4215

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Elanora Place [2009] QBCCMCmr 260 (21 July 2009)