Meadowglen [2011] QBCCMCmr 399 (14 September 2011)

Last Updated: 28 September 2011

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	Meadowglen [2011] QBCCMCmr 399
PARTIES:	The body corporate (applicant) Roger Burns (respondent)
SCHEME:	Meadowglen CTS 19139
JURISDICTION:	Sections 227(1)(b) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (Act), applying the Act and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module).
APPLICATION NO:	0548-2011
DECISION DATE:	14 September 2011
DECISION OF:	P Dowling, Adjudicator
CATCHWORDS:	DAMAGE TO COMMON PROPERTY – whether an owner has damaged common property by planting trees; whether the body corporate is acting reasonably if it asks the owner to remove the trees. Act, ss 94, 100, 182.

ORDERS MADE:

I hereby order that within two weeks of the date of this order, Roger Burns, the owner of Lot 47, must remove the eight trees he planted on common property between Lots 47 and 48 and carry out work, including laying lawn on the part of common property from which the trees are removed, to restore the common property to its previous condition. I further order the outcome sought that Mr Burns reimburse the body corporate for the costs of adjudication is dismissed.

REASONS FOR DECISION
Introduction

[1] The respondent has planted trees on common property. The body corporate believes he has contravened a by-law; it has asked him to remove the trees. The respondent has not complied with the body corporate’s request.
[2] The body corporate seeks an order that the respondent removes the trees and restores the affected lawn area. It has also asked the respondent pay the costs associated with this dispute.

Jurisdiction

[3] After receiving the application, the commissioner invited the respondent and the other lot owners to make submissions (s 243, Act). Submissions were made by the respondent and thirty other owners.
[4] The commissioner has referred the application to departmental adjudication (s 248, Act). An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act (s 276(1), Act).

Overview
The background to the dispute

[5] The respondent submits he approached the caretaker (Mr Cavanagh) for authorisation before planting the trees. He states he bought and planted the trees after Mr Cavanagh said he would get the committee to reimburse him.
[6] The record of an informal committee meeting dated 20 December 2010 indicates Mr Cavanagh presented a receipt for $239.88 from Hawkins Nursery for buying the trees. The committee decided to reimburse the respondent and to move the trees elsewhere on common property.
[7] On the same date, the body corporate manager informed the respondent of the committee decision and referred to By-law 9(a).
[8] On 22 December 2010, the respondent told the secretary and treasurer the committee cannot remove, interfere or damage the trees without an order made under the dispute resolution provisions of the Act.
[9] On 14 February 2011, the committee decided to give the respondent a notice of continuing contravention of By-law 9(a) requiring the trees to be removed because they were planted without body corporate approval.
[10] In a notice of continuing contravention of By-law 9(a) addressed to the respondent and dated 21 February 2011, the body corporate stated the respondent “planted trees in the common property area between Villas 47 and 48 and made garden beds in the lawn area between Villas 47 and 48 without written permission of the body corporate committee”.

Analysis
Body corporate powers

[11] It is not disputed the respondent planted eight trees between his lot (Lot 47) and Lot 48. It is clear from the plan of subdivision (GRP 100925) that the area on which the trees are planted is common property.
[12] In this circumstance, the committee could make the 20 December 2010 decision. It related to the administration and management of common property (ss 94(1)(a), 95, 100(1) and 152(1)(a), Act).
[13] In addition, By-law 9(a) provides: “An Occupier must not damage any Common Property, lawn, garden, tree, shrub, plant or flower, or use as a garden any portion of the Common Property, except with the consent in writing of the Body Corporate Committee.” The body corporate has the power to make such a by-law (s 169(1)(a), Act). The by-law is binding on the body corporate and the respondent (s 59(2)(a) and (b), Act). The body corporate must enforce its by-laws (s 94(1)(b), Act).
[14] It is clear the committee did not relocate the trees or subsequently consent to the original planting. There is nothing to prevent the committee from making the February 2011 decision which essentially revoked the earlier December 2010 decision. The committee has the power to decide to give a person a by-law contravention notice (s 100(1) and (2), Act and s 42, Standard Module).
[15] If a body corporate reasonably believes an owner is contravening a by-law and the circumstances make it likely that the contravention will continue, the body corporate may give a continuing contravention notice to the person to remedy the contravention (s 182, Act). The notice required the respondent to cease the contravention within seven days of receiving the notice. The person must comply with the notice (s 182(5), Act). If the person does not comply, the body corporate may make a dispute resolution application (s 182(4)(e)(ii) and 184, Act).
[16] At its meeting dated 23 May 2011, the committee authorised making this application. The committee has the power to make this decision (s 100(1) and (2), Act and s 42(1)(e)(iii), Standard Module).

By-law 9(a)

[17] The respondent has not argued he was not given the by-law contravention notice. Neither is there argument the notice did not comply with section 182(4) of the Act. The respondent clearly has not complied with the notice.
[18] The owner of Lot 55 has argued the respondent has not contravened By-law 9(a). The respondent has not mounted a similar argument. In his letter to the body corporate manager dated 22 December 2010, the respondent stated he did not have any knowledge of the by-law.
[19] I consider the by-law applies in the circumstances: the respondent is an occupier (occupier defined schedule 6, Act) and he damaged common property lawn to plant a tree. There is nothing in the material which shows the respondent could, despite the by-law, plant a tree on common property without body corporate authorisation.
[20] In my view, the respondent needed body corporate approval before he planted a tree on the common property between Lots 47 and 48. Even though the committee initially proposed to transplant the trees and reimburse the respondent, clearly it now wants him to remove the trees and restore the affected lawn area. It is not relevant that the body corporate only seeks the removal of the trees, and is not seeking an order about the garden beds mentioned in the continuing contravention notice.
[21] In my view, By-law 9(a) applies in the circumstances. The body corporate has sought to enforce it in the way allowed by the Act.

Has the committee acted reasonably?

[22] The remaining question is whether, in the circumstances, the body corporate is acting reasonably. The committee must act reasonably making a decision (s 100(5), Act). The body corporate must act reasonably enforcing a by-law (s 94(2), Act).
[23] The body corporate will have acted reasonably if the decision is objectively reasonable (Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125). The objective test requires a balancing of factors in all the circumstances according to the ordinary meaning of the term ‘reasonable’ (Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621).
[24] The body corporate submits access for emergency services would be restricted when the trees grow and the trees would interfere with mowing the adjacent common property. The application is supported by 27 owners.
[25] In his letter to the body corporate manager dated 22 December 2010, the respondent said:

• He has not seen Mr Cavanagh mow the common property between Lots 47 and 48.
• He has planted shrubs and trees on the common property around Lots 46, 47 and 48 and has been reimbursed by Mr Cavanagh and the same situation occurs with other members of the body corporate.
• It was not unreasonable for him to expect the previous purchasing and reimbursement arrangements would not continue.

[26] The respondent and the owners of Lots 46 and 48 submit:

• Approaching Mr Cavanagh for authorisation before planting the trees is common practice.
• There should be consistency as the committee has allowed planting of six trees on the common property adjacent to Lot 46.
• The trees provide a safety barrier as the height of an adjoining retaining wall exceeds the minimum statutory safety requirements.
• There is no current evacuation plan for the complex and mowing is not restricted.

[27] The owner of Lot 55 submits:

• There is no restriction of access to the rear entrance and the area is primarily used for garbage bins.
• There is discrimination as the respondent’s neighbour has planted similar trees on common property down the side of her villa with the approval of the chairperson.
• The trees do not have an adverse effect on any person in the scheme.

[28] I am not satisfied from submissions it is proven access for emergency services is affected by the tree planting. Nothing has been provided by a relevant organisation or an appropriate person substantiating this view. Neither is there an objective basis for the claim the trees provide a safety barrier from the adjoining retaining wall. It is not demonstrated for example that the wall poses a danger which is lessened by the presence of the trees.
[29] I am not persuaded the committee could not make a decision about the removal of the trees because of any purported statement made to the respondent or another person by Mr Cavanagh. It is apparent from the record of committee decisions that it has consistently opposed the current location of the trees. With respect to the six trees on the common property adjacent to Lot 46, the minutes of the 14 February 2011 committee meeting note the committee resolved to remove trees in the vicinity of Lot 46. While it is not known if these trees are those mentioned by the respondent, the decision demonstrates the committee has not ignored another unauthorised (and possibly similar) planting of trees.
[30] The respondent has planted trees on common property. I am not satisfied from his submissions that he had an entitlement to do this work or that it was reasonable that he plant the trees and expect the body corporate to maintain them. There is nothing to suggest the trees serve a particular purpose which benefits the use or enjoyment of common property. It is not argued the trees are necessary to maintain common property in good condition. In summary, the respondent has not provided a legislative basis for doing this work.
[31] On the other hand, the body corporate is responsible for the management and maintenance of this part of common property. It must maintain the area in good condition including mowing the lawn (s 159(1), Standard Module). It would be responsible for the maintenance of the planted trees. There is a possibility the trees may interfere with the mowing or cause further maintenance in the area. The frequency Mr Cavanagh or anyone else mows this area is not relevant to the determination of this matter. There may be a possibility the trees may damage adjacent common property such as the retaining wall, grass and adjoining buildings or infrastructure (if for example, pipes are laid in this part of common property). The body corporate is, in my view, entitled to be concerned about issues of this nature.
[32] In the circumstances, I consider the committee could reasonably rely on By-law 9(a) to require the respondent to remove the trees from common property.
[33] The respondent submits a relevant mitigating consideration is that it appears Mr Cavanagh exceeded his authority by not referring the request to the committee. He says therefore it is unfair and unreasonable that he should not be reimbursed for the cost of the trees. While the committee may have initially resolved to relocate the trees, it is apparent it no longer has this view. I do not believe the committee was not able to change its position on this matter. There has not been any detriment to the respondent by the change; the trees had already been purchased and planted. I do not consider the body corporate is responsible for the costs of the trees because the respondent may have relied on a statement made by Mr Cavanagh.

Conclusion

[34] In conclusion, I am satisfied the respondent contravened By-law 9(a) when he planted the trees. In my view, the body corporate has acted reasonably enforcing the by-law. It is clear the respondent has not complied with the by-law contravention notice. A dispute exists between the body corporate and the respondent about a contravention of By-law 9(a). In the circumstances, the dispute can only be resolved if the damage is repaired. This can only occur if the respondent removes the trees and reinstates the lawn.
[35] The body corporate has also asked the respondent to pay its costs associated with this application. The body corporate paid the prescribed fee of $63 when making this application. There is no power for an adjudicator to make the order sought in the circumstances of this application.
[36] The respondent also sought recovery of his costs for this process. For the above reasons, there is no basis for any such order to be made.
[37] The owner of Lot 55 complains about the committee; he asks that the committee be removed and an administrator appointed. This is not a matter for determination in this application.