Carindale Links [2010] QBCCMCmr 459 (5 October 2010)

Number of Scheme:	22516
Name of Scheme:	Carindale Links
Address of Scheme:	173 Cribb Road CARINDALE QLD 4152

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Carindale Links

I hereby order that Sui Shing Lai and Woon Yee Chan, Owners of Lot 20, shall ensure that at all times the rear yard and front garden of the lot is maintained in a clean and tidy condition.

I further order that the application is otherwise dismissed.

Carindale Links community titles scheme 22516 (Carindale Links) consists of 40 lots and common property. The community management statement (CMS) for Carindale Links indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module) applies to the scheme. Department of Environment and Resource Management records show the scheme is registered as Group Titles Plan 105765 and Group Titles Plan of Resubdivision 106534.

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by the Body Corporate for Carindale Links (applicant) on 4 December 2009 and 29 July 2010, pursuant to a Committee resolution on 14 May 2010.

The applicant sought orders against Sui Shing Lai and Woon Yee Chan, Owners of Lot 20 (respondents) in the following terms:

For the BCCM Office to issue an Order to the owners of Lot 20 to clean up and keep maintained the private yard of the lot. All weeds and overgrown plants are to be removed or trimmed and the large tree is to be lopped so that it is below the height of the roof gutters. The work is to be completed within 14 days of the Order.

Initially the Body Corporate lodged an application for conciliation on 5 May 2010[1]. On 26 June 2010 the Conciliator ended the conciliation on the basis that the respondents did not make a reasonable attempt to participate in conciliation. Subsequently this application was lodged

Under section 243 of the Act, a copy of the application was provided to the respondents and the Body Corporate, with an invitation to the respondents and all owners to respond to the matters raised by the application. No submissions were received.

I note that the Commissioner’s file contains a file note of a telephone call from Mr Gabriel Chan on 16 August 2010. Mr Chan appeared to be connected with the respondents. The file note indicates that since receiving the notice inviting submissions the respondents had taken steps to rectify the problem but had been told by the onsite manager that more was required. The officer taking the call clarified the purpose of the notice inviting submissions and Mr Chan indicated that a written submission would be made or they would request an extension. When no submission was received, the Office attempted to call Mr Chan on 26 and 30 August, but without success.

A dispute resolution recommendation was made referring the dispute to departmental adjudication. I then investigated the dispute, pursuant to section 271 of the Act, which included reviewing the application and submissions and seeking further information from the applicant as detailed below.

At my request, the Office attempted to telephone Mr Chan again on 3 and 7 September with no response. Our Office then wrote to the respondents on 13 September providing a further copy of the application and further information received from the Body Corporate. The respondents were provided with a further opportunity to make a written submission on the application. The letter noted that if no submission was received, the adjudicator would be unable to take their views into consideration and a determination would be made without further reference to them.

The application concerns the condition of the Lot 20 yard. The circumstances, as outlined in the application, can be summarised as follows.

On 26 January 2009 the Owner of Lot 19 (who is also the caretaker) wrote to the Body Corporate Manager (BCM) expressing concern about the back garden of Lot 20. He indicated concern about the tall tree being blown down and the care of the garden. He noted a vine weed was growing along the fence line and had invaded his garden and that of Lots 21, 4 and 25 which adjoin Lot 20. He wanted the respondents to kill off the vine, tidy the garden and pay to remove overgrowth into neighbouring properties. The concerns were reiterated in a further letter on 10 February.

On 6 February 2009 the Committee considered the matter. On 19 February the BCM wrote to the respondents providing photographs and advising of complaints from another owner. The letter said the yard was overgrown and unkempt; noted that the by-laws and Accommodation Module required them to keep their lot in a clean and tidy condition; and requested that they clean up the yard and keep it maintained. In particular it requested that weeds and overgrown plants be removed or trimmed and the large tree be lopped so that it is below the height of the roof gutters. Finally the letter noted if the work was not done the Body Corporate could do it at their expense.

On 9 October 2009 a further letter was sent, following a Committee meeting on 18 September, again requesting that the yard be cleaned up and kept maintained, including removing or trimming all weeds, vines and overgrown plants.

The matter was discussed further at Committee meetings on 4 December 2009 and 14 May 2010. The Body Corporate were concerned about whether they would be able to recoup any costs if they cleaned up the yard and so decided to pursue an application through this Office. On 5 March 2010 the Body Corporate issued a Notice of continuing contravention of a body corporate by-law[2] referring to By-law 18 and section 168(1) of the Accommodation Module. On 14 April 2010 the the caretaker advised that the front yard had been cleared a bit and did not look as bad as before, but there was ‘fauna’ growing in the gutters. On that basis the Body Corporate apparantly decided the matter had not been rectified and lodged the conciliation application.

At my request, on 7 September 2010 a member of this Office contacted the BCM to ascertain the current status of the yard and whether there had been any change since the application was lodged. The same day the BCM provided two photographs of the exterior of the lot. While these photographs showed the tall tree they did not appear to show the back yard of Lot 20. The accompanying email says that the occupants of Lot 20 contacted the caretakers a few weeks before to query what they should do. The caretaker apparently told them to clean up their yard but says they have not done anything to it. The photographs provided did not appear to demonstrate an untidy yard and so, at my request, the Office contacted the BCM again seeking clarification of the current status. On 9 September the BCM provided seven further photographs. Four appear to be of the front garden adjacent to the front door. Three appear to be of the back yard of the lot.

I am satisfied that this is a matter which falls within the legislative dispute resolution provisions.[3]

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 claimed or anticipated contravention of the Act or the CMS; or the exercise of rights or powers, or the performance of duties, under the Act or the CMS; or a claimed or anticipated contractual matter about the engagement of a person as a body corporate manager or service contractor; or the authorisation of a person as a letting agent.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order.[4] An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[5]

The issue for consideration in this matter is whether the respondents have breached the requirements of the by-laws or the regulation module in regard to the condition of their lot.

The CMS for Carindale Links was recorded on 11 March 2008 and includes By-law 18 as follows:

Each Proprietor or Occupier shall be responsible for the interior maintenance of his or her lot including balconies and terraces (if any).

Section 94 of the Act provides that the body corporate administers, manages and controls the common property, and must do so reasonably and for the benefit of owners. Section 169 empowers a body corporate to make by-laws for that purpose, including conditions applying to the use of common property. I am not aware of any basis to suggest that By-law 18 is not a by-law that is within the power of the Body Corporate to make and enforce. Section 94(1)(b) of the Act imposes a duty on the body corporate to enforce the community management statement, including the by-laws.

Sections 182 to 188 of the Act provide the process for pursuing an alleged by-law breach. When a body corporate is pursuing a by-law issue, the first step is generally to issue a contravention notice. The contravention notice, which must state certain things including the nature of the breach, must be given to the person who the body corporate believes is breaching the by-law. If the issuing of a contravention notice does not rectify the matter, the body corporate can either commence proceedings in the Magistrate’s Court or may lodge a dispute resolution application in the Commissioner’s Office.

The primary area of concern in this application appears to be the condition of the backyard, and particularly overgrown weeds which have spread into neighbouring lots.

The applicant suggests that nothing has been done by the respondents, although the most recent photographs provided indicate a quite different condition to the photographs (the date of which is unclear) which were included in the application. It would appear from the recent photographs of the back yard that all tall weeds and in fact plants generally have been largely removed. What has been left appears to be an area littered with rubbish and small weeds, along with a large pile of dead plant material against one fence.

The back yard would not be readily observable from most of the scheme, and the yard appears to have high fences. The recent photographs appear to have been taken by someone standing in an adjacent lot right on the fence line looking over the fence, which neighbours presumably would not normally do. However I do accept that it is likely that at least part of the back yard would be readily observable from those lots that are immediately adjacent to Lot 20, particularly from upper levels.

I do not consider By-law 18 or section 168(1) of the Accommodation Module necessarily require a high standard of landscaping and garden maintenance, or even a complete absence of any weeds. As long as a yard is relatively neat and tidy, and free from rubbish, that would generally be sufficient even if the yard is not maintained to the same level that other owners would like. However, particularly in the absence of any evidence or argument to the contrary, I am satisfied that the back yard of Lot 20 is currently not in a clean or tidy condition.

Although the application is somewhat unclear, it seems that the focus of the application is the back yard. However photographs have also been provided of the front garden and an email in April 2010 mentions the front yard being tidied up. The photographs of the front yard indicate shrubs that are somewhat overgrown, along with a few weeds and what appears to be an old telephone book on the path near the garage.

Although perhaps not to the standard of yard maintenance that many owners would prefer, these photographs do not suggest to me a significant issue. The photographs do not indicate that the front garden is sufficiently ‘unclean’ or ‘untidy’ as to warrant an order requiring immediate action. That said, particularly at this time of year, continued growth of shrubs and trees a like is to be expected. Therefore a degree of garden maintenance would appear be required in the near future to ensure that the area does not become excessively overgrown.

The outcome sought in this application includes that the large tree be lopped so that it is below the height of the roof gutters. However, other than a request in a letter in 19 February 2009 to lop the tree, it is not apparent that the nature of the concerns regarding the tree have been put to the respondents and the by-law contravention notice makes no reference to the tree (referring only to the yard being overgrown and unkempt).

The application includes no information upon which to base the request to lop the tree. There is no mention in the application as to how the existence of a tall tree is contrary to the requirements in By-law 18 or section 168(1) of the Accommodation Module that a lot be kept clean and tidy. There is no information or argument presented that the tree is untidy or unclean, or why the tree should be at gutter level (as opposed to any other height). Moreover, based on the photographs provided, lopping the tree to below gutter level would appear to require the removal of all of the branches leaving nothing more than the trunk. As such the order appears to essentially seeking the removal of the entire tree. No justification for this is provided.

Correspondence from the Owner of Lot 19 appears to suggest a concern that the tree would be blown down. This is a safety risk rather than an issue of tidiness. It may well be a valid concern and if there is some genuine risk with the tree it would be a maintenance obligation of the respondents to rectify. However it would not be just and equitable for adjudicator to require the removal or substantial lopping of a tree based on such a brief and unsubstantiated fear. If the Body Corporate or any owner has a genuine concern regarding the safety of the tree, they should engage an appropriately qualified expert such as an arborist. Professional advice could establish whether there is a real risk and whether removal or significant lopping of the tree is justified. If the advice is that removal or lopping is necessary, this information should be provided to the respondents who, subject to any contrary advice that they receive, should take appropriate action in accordance with their legislative maintenance obligations.

Particularly in the absence of evidence from the respondents refuting the claims made in the application, I am satisfied that the Body Corporate has demonstrated that the yard of Lot 20 is not currently in a clean and tidy condition. As such the respondents are failing to meet their obligations under By-law 18 and section 168(1) of the Accommodation Module.

I intend to order that the respondents shall ensure that at all times the rear yard and front garden of the lot is maintained in a clean and tidy condition. This is an existing obligation of the respondents, and in that respect this order does not change the current state of affairs. If the respondents fail to keep their yard is a clean and tidy condition, action can be taken in the Magistrates’ Court to enforce the order[6].

The respondents should immediately ensure that the back yard is cleaned, with the rubbish, dead plant material and weeds removed. In future the respondents should ensure that the front and back areas are kept tidy, which would include ensuring that plants do not become excessively overgrown or impinge on their neighbours lots, and that weeds are kept under control so that they don’t infest their neighbours’ lots.

I am not satisfied that the Body Corporate has yet demonstrated any basis to require the tree in back yard to be lopped. Accordingly the application is dismissed in this respect. If the Body Corporate can obtain a report from an appropriately qualified professional demonstrating that there is a genuine safety or property risk from the tree which warrants its removal or substantial lopping it should provide that to the respondents. The respondents should ensure that they meet their legislative maintenance responsibilities in this regard, which would include ensuring that any tree on their property is properly maintained and does not present a risk to persons or property.

[1] Reference 0425-2010
[2] BCCM Form 10, pursuant to section 182 of the Act
[3] See sections 227, 228, 276 and Schedule 5 of the Act
[4] Section 276(2) of the Act
[5] Section 284(1) of the Act
[6] See section 113 of Schedule 4 of the Act

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Carindale Links [2010] QBCCMCmr 459 (5 October 2010)