Greenlands [2010] QBCCMCmr 199 (30 April 2010)

Last Updated: 9 June 2010

REFERENCE: 0037-2010

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21006
Name of Scheme:	Greenlands
Address of Scheme:	35A Grevillea Drive VARSITY LAKES QLD 4227

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

Christopher Stuart, the Owner of lot 24

I hereby order that the body corporate committee for Greenlands is deemed to have consented to the applicant’s proposal to construct a 1.8 metre high “colourbond” side fence which will be 26.7 metres in length and a 1.8 metre high front fence that will be 11.2 metres in length.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0037-2010

“Greenlands” CTS 21006

APPLICATION

This application has been submitted by Chris Stuart the owner of Lot 24 (applicant) seeking orders against the body corporate. The applicant states that he wishes to replace his side fence and to build a front fence but has been refused permission by the committee.

The applicant states that the fence is around 18 years old and is infested with termites. Over the last 12 months the applicant has been negotiating with the committee for permission to replace the existing fence and to erect a new fence at the front of his property for privacy purposes. He states that one of the reasons why he wishes to construct a front fence is the position of his bathroom at the front of his unit in close proximity to the street.

The proposed fence will be in the same style as several other front fences within the complex, constructed of green “colourbond” material and 1.8 metres high.

He believes that the committee’s refusal to grant permission is neither fair nor just.

SUBMISSIONS

Pursuant to section 243 of the Act, all lot owners and the committee were invited to make submissions regarding this application.

Four submissions were received from individual lot owners including owners of neighbouring lots. Each of these submissions supported the application, stating that the existing fence is in a bad state of repair and is beginning to lean at an angle. Further, they believe the applicant should be permitted to construct the new fence along the existing fence line.

They also recognised that the bathroom window is currently visible from the street and that other lots currently have a front fence.

The committee advised that they have approved numerous fences over the last year but have had difficulties with the applicant because of his confrontational approach. The committee believed that the applicant’s original plan was to build a fence that went beyond his boundary and too close to the road. The committee then asked the applicant to indicate approximate distances but the applicant failed to provide these details.

The committee further states that four different proposals were put to them previously but agreement could not be reached. However the latest proposal (the “fifth proposal”) submitted with this dispute resolution application, was considered by the committee on 6 February 2010 and it was agreed that the committee would approve this proposal on the following conditions:

• The fence is to start from the rear of the pillar as shown in Mr. Stuart’s 5th sketch;
• The measurement at the left hand side of the fence to the main building is continued parallel to the building to the end of the fence on the right side of the building as requested by Mr Stuart;
• The side fence proposed by Mr Stuart is to terminate at the point where it intersects with the new fence as requested by the applicant.
  

In response, the applicant advised that he agrees with the first 2 conditions but not the third condition. This is because the existing fence “continues past the point of intersection ” with the new fence. He states that the existing side fence encloses the front yard of unit 31 and he merely wishes to replace the existing side fence at the same length and height.

JURISDICTION

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)).

DETERMINATION

I have perused the relevant Group Title Plan for this scheme as well as the plans provided by the applicant. I note from GTP 1783 that the boundary along which the applicant wishes to replace the existing fence is 26.7 metres in length i.e. from the rear boundary to the front boundary. The other side of the applicant’s lot is an irregular shape but according to my calculations the distance between the rear boundary and front boundary is approximately 29 metres. The 26.7 metre fence would be constructed along the boundary between lot 24 and the neighbouring unit 31 and would not encroach upon common property. The new front fence would in fact be set back some distance from the lot boundary – presumably for aesthetic reasons i.e. it would be flush with the existing entrance and garage doors.

A body corporate is required by section 94 of the Act to act reasonably in carrying out its functions, including administration of the scheme by-laws. In this scheme, by-law 9 requires an owner to obtain the permission of the committee before making any alterations to his lot, including changes to fencing. However the committee does not have an unbridled discretion in this matter and the consent of the committee should not be unreasonably withheld.

In the present case I believe the committee’s requirement that the new side fence should only go as far as the proposed front fence is unreasonable. The applicant is merely seeking permission to replace an existing boundary fence that does not encroach on common property and the new fence will be the same footprint as the existing fence. I consider it quite reasonable for the front fence to be set back from the lot boundary so that it is flush with the covered entrance and garage doors. To require that the side fence only go so far as the applicant’s front fence would leave a section of the neighbouring lot unfenced. I therefore propose to order that the body corporate is deemed to have consented to the applicant’s proposal to construct a 1.8 metre high “colourbond” side fence which will be 26.7 metres in length and a 1.8 metre high front fence that will be 11.2 metres in length as proposed by the applicant.