Riverstone Crossing - Riverstone [2011] QBCCMCmr 9 (10 January 2011)

Number of Scheme:	38112
Name of Scheme:	Riverstone Crossing - Riverstone
Address of Scheme:	Maudsland Road UPPER COOMERA QLD 4209

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Riverstone Crossing – Riverstone community titles scheme 38112

I hereby order that within one month of the date of this order, Kevin and Deborah Handelaar, the owner of Lot 60 must comply with By-law 36 and remove those parts of the side fences on the boundary of the lot that do not finish one metre behind the building line.

The application
The body corporate seeks an outcome that Kevin and Deborah Handelaar, the owner of Lot 60 (respondents), remove side fences to finish one metre behind the building line as per the design covenants.

On 3 November 2010, the commissioner invited submissions from the respondents and all lot owners regarding the application under section 243 of the Body Corporate and Community Management Act 1997 (Act). The respondents made submissions.

On 8 December 2010, the commissioner made a dispute resolution recommendation under section 248 of the Act referring the application to departmental adjudication.

Adjudication
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 community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (s 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (s 276(2), Act).

On 11 May 2010, the committee decided it would make an adjudication application asking that the respondents remove a fence. On 28 May 2010, an adjudication application was made (Application 0508-2010). In making this application, the body corporate referred to: letters it had written to the respondents on 17 February 2009, 26 March 2009 and 3 August 2009 regarding fencing; a notice of continuing contravention of By-law 36 dated 1 September 2009; and a later conciliation agreement. On 10 August 2010, the body corporate withdrew Application 0508-2010 saying the respondents had removed the fence panels. The body corporate also stated the fence posts remain and should the fence be reinstated another application may be lodged.

The body corporate refers to Application 0508-2010 in making this application. It has provided a copy of the abovementioned documents. The body corporate says it withdrew the application believing the fence was to be permanently removed, but the respondents subsequently reinstalled a fence of a swimming pool type shown in two photographs it has provided.

The body corporate says the fence is in breach of the design covenants. It provided a copy of pages 8 and 9 of the ‘Built Form Code’ dated February 2008 which states: at 2.12, “It is important that any fencing is not visually detrimental to the streetscape and adjoining neighbour”; at 2.12(c), “The RCDP does not allow the use of any front fencing”; at 2.12(d), “Fencing is to be ‘Good Neighbour’ fencing”; and at 2.12(g), “‘Good Neighbour’ fencing to finish 1m behind the building line”.

At the time of the May 2010 committee meeting, By-law 36 (having effect from 11 December 2009) stated each owner acknowledges there are design covenants as referred to in the by-law, each owner is bound by and will comply with the design covenants, and the documents referred to in the by-law are available from the office of Stewart Silver King and Burns. The current community management statement for the scheme (having effect from 10 December 2010) includes By-law 36 in similar terms.

Given its provisions, the by-law would appear to have the effect of incorporating particular covenants into the community management statement that applied at the time the body corporate consented to recording the new statement. The body corporate submits although the design covenants have been updated, it has always been a requirement of the design covenants that side fences are to finish one metre behind the building line. This is not disputed.

The respondents submit that as discussed with the body corporate, they agreed to remove the disputed wooden fence at the front of the lot and replace it with pool fencing. The respondents wonder why the body corporate is picking on them when other covenants are being broken or ignored by others. They provided a copy of a site plan on which lines have been drawn to indicate the position of pool fencing.

Given the information on the site plan and the survey plan (SP192131), I am satisfied the fencing is on or near the boundaries between Lot 60 and Lots 59 and 61, and ends on or about the boundary of the lot bordering Drafters Crescent. Significantly, the site plan and the photographs provided by the body corporate indicates the fencing is in front of the building drawn on the site plan.

The body corporate has demonstrated it has notified the respondents of its concerns with respect to fencing in front of the building line. Even though the type of fence has changed since the body corporate corresponded with the applicants and authorised making an adjudication application, it is apparent that a fence (or parts of a fence) has continued to be in front of the building line which was and is the focus of the body corporate’s concerns. In my view, the body corporate should be able to continue to rely on the 2009 correspondence to pursue this matter against the respondents.

The community management statement for a scheme is binding on the scheme’s body corporate, the owners of lots included in the scheme and other persons who occupy these lots (s 59(2), Act). The statement must state the things listed in section 66 of the Act, including the by-laws (s 66(1)(e), Act). A body corporate must enforce the community management statement, including any by-laws for the scheme (s 94(1)(b), Act). It may enforce the by-laws in the ways stated in sections 182 to 188 of the Act.

It is apparent the body corporate gave the respondents a continuing contravention notice pursuant to section 182 stating it believes By-law 36 is being contravened because fences continue past the front building line when the covenants require the fences to finish one metre behind this line. There is nothing to suggest that procedurally this notice is contrary to section 182. I am satisfied the body corporate complied with the preliminary procedure stated in section 184 of the Act before making this application. If the person does not comply with a contravention notice the body corporate may make a dispute resolution application (s 182(4)(e)(ii), Act).

While the respondents feel they are being picked on, they have not argued that the fences do not contravene the covenants and the by-law. The respondents are bound by by-laws which must be enforced by the body corporate. There is nothing to suggest that when the contravention notice was given or currently that the respondents could fence past the building line. The committee has demonstrated the respondents continue to contravene the covenants and the by-law. I do not consider this action by the committee is unreasonable even though the applicants claim other owners are contravening covenants. If the applicants consider an owner or occupier is contravening a by-law, they are able to inform the body corporate and take appropriate action if the body corporate does not proceed against the person being complained about (s 185, Act).

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Riverstone Crossing - Riverstone [2011] QBCCMCmr 9 (10 January 2011)