Ashworth v Foreman [2015] QCATA 1

CITATION: Ashworth v Foreman [2015] QCATA 1 PARTIES: David Ashworth (Appellant) v Dwight Foreman (Respondent) APPLICATION NUMBER: APL224-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Kanowski DELIVERED ON: 7 January 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The orders made by the Adjudicator on 11 March 2014 are amended by deleting the words “remove the security camera which has been installed on the exterior of the building without the permission of the body corporate”. 2. The Adjudicator’s orders are otherwise confirmed. CATCHWORDS: APPEAL – body corporate and community management – where adjudicator did not consider whether a security camera is a safety device – whether natural justice observed Body Corporate and Community Management Act 1997 (Qld) s 168, s 289, Schedule 4 Purcell v Murtagh [2011] QCATA 175 APPEARANCES: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 8 -- 2 REASONS FOR DECISION [1] Mr Ashworth and Mr Foreman are neighbours in a duplex known as Dal Mari. Mr Foreman owns his unit. The other unit, in which Mr Ashworth and his partner live, is registered in the name of Mr Ashworth’s late mother. Mrs Ashworth left the unit in her will to Mr Ashworth and his brother. The estate has yet to be fully administered. [2] Mr Foreman became dissatisfied with a number of things Mr Ashworth did on the common property of the body corporate. These included storing an unregistered car, erecting fences and bamboo screening, and installing a security camera. [3] Mr Foreman applied to the office of the Commissioner for Body Corporate and Community Management (the Commissioner) for dispute resolution under Chapter 6 of the Body Corporate and Community Management Act 1997 (Qld) (the BCCM Act). This led in due course to an adjudication process. The Adjudicator received written submissions and made a decision on the papers on 11 March 2014.1 [4] The Adjudicator ordered, in summary, that Mr Ashworth: a) remove the car; b) remove fences constructed on the common property without permission; c) remove extensions made to the existing common property fence; d) remove all rubbish and fill all holes that have been created on common property; e) remove the security camera; f) ensure that his invitees not cause nuisance to the occupiers of Mr Foreman’s unit; and g) pay $136 to Mr Foreman to reimburse him the cost of application fees for conciliation and adjudication. [5] Mr Ashworth has appealed to the tribunal against the Adjudicator’s orders. An appeal is available only on a question of law.2 [6] The Commissioner has provided a copy of her file.3 Both parties have lodged submissions. [7] Mr Ashworth has raised a number of matters in his appeal documents, and these will be considered below. Most of them do not raise questions of law, but focus on why Mr Ashworth thinks the Adjudicator’s orders were inappropriate. In an appeal confined to a question of law, the appellant must establish an error of law: for example that an adjudicator has 1 Dal Mari [2014] QBCCMCmr 89. 2 BCCM Act s 289(2). 3 Under BCCM Act s 290(2). -- 2 of 8 -- 3 misinterpreted a statutory provision, taken into account an irrelevant consideration, or applied a wrong legal principle. [8] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute.4 For an appellant to establish an error of law, it will not be enough to contend that some different order should have been made, or would have been preferable. Provided that the adjudicator’s order is not affected by an error of law, it is a matter for the adjudicator to decide what is a just and equitable order to resolve the dispute. [9] I am persuaded that there was an error of law made by the Adjudicator in the present case. This was in connection with the order about the security camera. I will deal with that matter first, and then explain why I am not persuaded that there are any errors of law affecting the other orders. THE SECURITY CAMERA [10] In his adjudication application, Mr Foreman said that Mr Ashworth had installed security cameras under the eaves at the front and rear of his unit. Mr Foreman submitted that exposed cabling defaced the exterior of the building and presented a hazard, and that the visibility of the cabling impacted negatively on the appearance of the building from the street. [11] The Adjudicator considered that the installation of a camera (presumably the front one) breached by-law 5(1).5 That by-law prohibits the defacing etc. of common property without the approval of the body corporate. It was undisputed that body corporate approval had not been obtained. The Adjudicator ordered the removal of the security camera. [12] Mr Ashworth says he needs the camera to prevent violent intrusions by Mr Foreman and his associates. He argues that the Adjudicator’s order violates his ‘right under section 168 to install a safety device to protect the lot from intruders’. I take this to be a reference to by-law 5(2) because the Schedule 4 by-laws apply because of the effect of section 168(2) of the BCCM Act. In order to understand Mr Ashworth’s argument, it is useful to quote the relevant parts of by-law 5: 5 Damage to common property (1) An occupier of a lot must not, without the body corporate's written approval, mark, paint, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the common property. (2) However, an occupier may install a locking or safety device to protect the lot against intruders, or a screen to prevent entry of animals or insects, if the device or screen is soundly built and is consistent with the colour, style and materials of the building. [13] It is apparent from the structure of by-law 5 that an occupier is free to install a suitable safety device under by-law 5(2) without the approval of 4 BCCM Act s 276(1). 5 The by-laws for Dal Mari are those set out in Schedule 4 to the BCCM Act. -- 3 of 8 -- 4 the body corporate under by-law 5(1). I consider that a security camera is capable of being a safety device to protect a lot against intruders. A security camera is likely to deter intruders. [14] The Adjudicator did not consider the possible application of by-law 5(2) in the present case. That is understandable because Mr Ashworth did not refer to by-law 5(2) in his submissions. However, Mr Ashworth’s submissions made much of the alleged danger to Mr Ashworth and his partner in their home, albeit mainly in discussion of the fencing changes. In light of Mr Ashworth’s emphasis on safety concerns, I consider that it was an error of law by the Adjudicator to not consider the possible application of by-law 5(2). As he did not consider by-law 5(2), he did not make findings about whether Mr Ashworth’s safety concerns were rationally-based; whether Mr Ashworth installed the security camera because of safety concerns or simply to intimidate neighbours; and whether the camera was soundly built and consistent with the colour, style and materials of the building. Without these issues being considered and resolved, an order should not have been made for the removal of the camera. FENCES [15] It is undisputed that Mr Ashworth erected fences and attached screens to fencing on common property, without the approval of the body corporate. One of the Adjudicator’s findings in this regard was that Mr Ashworth had erected a split bamboo fence to create a private yard. That finding was certainly open on the evidence, including the photographs, before the Adjudicator. [16] The Adjudicator considered that the various fencing changes breached a by-law or by-laws. He cited a number of by-laws but did not specify precisely which applied. However, it is clear that the erection of a fence, and the enlargement of an existing fence, breach by-law 3 which prohibits the obstruction of the lawful use of common property. Even if Mr Ashworth’s fencing changes were aimed, as he argues, at preventing unlawful activity by Mr Foreman and his associates, such as violence and invasions of privacy, they also obstruct the lawful use of that property. So it was clearly open to the Adjudicator to find that the fencing changes breached at least one by-law. [17] There were probably other breaches as well. Erecting a fence without the approval of the body corporate would generally breach by-law 4, which prohibits unapproved damage to a lawn on common property. Enlarging a fence without body corporate approval will almost inevitably involve a breach of by-law 5(1). Mr Ashworth submits that fencing/screens constitute a safety device under by-law 5(2). However, the fences and screens in question cross common land for many metres. I consider that by-law 5(2) contemplates relatively non-intrusive devices, such as window bars, window locks and security cameras, but not fences and screens extending a considerable distance across common property. -- 4 of 8 -- 5 [18] Mr Ashworth argues that the Adjudicator should not have ordered the removal of the additional fencing because this will expose him and his partner to the danger of violent intrusion. However, I consider it was entirely open to the Adjudicator to make orders to prevent an ongoing and substantial breach of by-laws, even if the safety and privacy concerns were genuine. Mr Ashworth could have taken steps to safeguard safety and privacy in his unit in ways that did not breach by-laws, such as by installing security screens and blinds. So far as Mr Ashworth’s safety on common property is concerned, that is a matter for the criminal law. [19] Mr Ashworth considers the Adjudicator’s orders about the fencing were inappropriate, but he has not demonstrated that any error of law was made by the Adjudicator in issuing those orders. THE UNREGISTERED CAR [20] In relation to the Adjudicator’s order that Mr Ashworth remove his unregistered car, Mr Ashworth submits that ‘section 168(2)(1)(b) and (c)’ does not require that vehicles be registered. (I take this to be a reference to by-law 2 in Schedule 4). Mr Ashworth says that none of the four vehicles on the property have full approval, and asks why his car is being singled out. He submits that if the Adjudicator’s order stands, the period allowed for compliance should be longer than the 30 days permitted by the Adjudicator. He contends that 30 days would cause him ‘unnecessary hardship, grief and disruption’. [21] By-law 2(1)(b) prohibits the parking or standing of a vehicle on common property without the approval of the body corporate. By-law 2(1)(c) concerns the vehicles of invitees. [22] Mr Ashworth is correct in saying that by-law 2(1)(b) does not require that a vehicle be registered. It applies to vehicles generally, whether registered or unregistered. But there is nothing in the Adjudicator’s reasons to suggest that he thought that the by-law applied only to unregistered vehicles. The Adjudicator correctly summarised the effect of the by-law in paragraph 18 of his reasons. He did refer elsewhere to the unregistered status of the car, but that is its actual status. If the Adjudicator’s reference to the unregistered status means that he took that status into account as a factor favouring an order for the removal of the car, then that would be unobjectionable. The status would by no means have been irrelevant. An adjudicator might more readily order the removal of an unregistered car left standing indefinitely on common property than a registered car that was being driven in and out frequently. [23] Mr Ashworth did not raise the issue of other cars on the common property in his submissions to the Adjudicator. The present appeal is not a platform for Mr Ashworth to add submissions that he has thought of since the Adjudicator’s decision. In any event, I consider that Mr Ashworth’s car was not ‘singled out’ in any unfair way. The dispute brought before the Adjudicator was about that car in particular. -- 5 of 8 -- 6 [24] Leaving the car on common property was a substantial and ongoing breach of a by-law. It was clearly open to the Adjudicator to order the removal of Mr Ashworth’s car. No error of law occurred. It was also entirely open to the Adjudicator to allow no more than 30 days for the removal. The dispute had been going for a long time. There had been plenty of time for Mr Ashworth to prepare for such an order. RUBBISH [25] Mr Ashworth says that Mr Foreman ‘would be asked to define rubbish as the term is being used to demonise regularly used belongings and outdoor furniture’. [26] It is not Mr Foreman’s role to define ‘rubbish’. If a question arises in enforcement proceedings in the Magistrates Court about whether a particular item constitutes rubbish, the Court will no doubt adopt and apply a definition. [27] No error of law has been demonstrated in relation to the order for the removal of rubbish. MR FOREMAN’S MOTIVATION [28] Mr Ashworth submits that Mr Foreman’s application was spiteful, and made in retaliation for a peace and good behaviour application. [29] Even if Mr Ashworth is correct on this point, in my view it was entirely open to the Adjudicator to make orders to prevent ongoing and anticipated breaches of by-laws. There was clear photographic evidence of the car, fences etc., and it was undisputed that the body corporate had not approved Mr Ashworth’s actions. No error of law has been demonstrated. DEE ASHWORTH’S SUBMISSION [30] The Adjudicator took into account a written submission by Dee Ashworth, the wife of Mr Ashworth’s brother Jamie. The submission supported Mr Foreman’s application. It appears that the submission was sought on the basis that Ms Ashworth spoke on behalf of Mrs Ashworth’s estate. Although Ms Ashworth is not the executor, she maintains contact with the executor, John Ashworth, who is Mrs Ashworth’s brother. John Ashworth lives in Europe and was not well at the time in question. [31] It was open to the Adjudicator to take submissions from any person he considered may be able to help resolve the issues.6 [32] Mr Ashworth submits to the tribunal that Ms Ashworth has ulterior financial motives as a real estate agent for supporting Mr Foreman’s application. Mr Ashworth did not make a submission to this effect to the Adjudicator. It is not apparent, though, that he knew that the Adjudicator had a submission from Ms Ashworth. I have considered whether there was a 6 BCCM Act s 271(1)(c). -- 6 of 8 -- 7 failure by the Adjudicator to observe a requirement of natural justice7 – that a party be given the opportunity to comment on adverse material – in not bringing Ms Ashworth’s submission to Mr Ashworth’s attention, so that he could comment on it. [33] The Commissioner’s office had written to Mr Ashworth a number of times during the course of the adjudication process. The letters said, amongst other things, that: Persons with a proper interest may inspect or obtain a copy of submissions (see section 246). There is a cost to inspect or obtain copies of submissions. [34] Section 246 of the BCCM Act provides a right in an interested person, upon payment of a fee, to inspect and obtain copies of submissions. It appears that Mr Ashworth did not avail himself of that opportunity. Had he done so, he could have commented on Ms Ashworth’s submission. [35] In the context of the BCCM Act, bringing a party’s attention to their right to inspect and obtain copies of submissions is sufficient compliance with the relevant requirement of natural justice.8 While it may be desirable for the Commissioner’s office or the adjudicator to inform a party that a particular submission has been received, there is no legal obligation to do so. [36] The Adjudicator was entitled to take Ms Ashworth’s submission into account. There was no denial of natural justice. No error of law has been demonstrated. SECTIONING OF COMMON PROPERTY [37] Mr Ashworth submitted to the Adjudicator, and again submits in his appeal, that portions of the common property should be sectioned off for exclusive use by the occupiers of each unit. [38] The Adjudicator noted that in the absence of any exclusive use by-law, each occupier is entitled to jointly use the common property. [39] Section 22 of Schedule 5 to the BCCM Act contemplates that an adjudicator might in certain circumstances order that the body corporate grant a licence over part of the common property to an owner. Mr Ashworth is not an owner, so section 22 does not apply, but it may have been open to the Adjudicator to make an order for Mr Ashworth to have a licence to exclusively use part of the common property. However, there was no obligation upon the Adjudicator to make such an order. [40] No error of law has been demonstrated in this regard. 7 BCCM Act s 269(3)(a) requires an adjudicator to observe natural justice. 8 See Purcell v Murtagh [2011] QCATA 175 at [71] to [73]. -- 7 of 8 -- 8 CONCLUSION [41] A single error of law by the Adjudicator has been established, in relation to the order for the removal of a security camera. The appropriate outcome9 is to amend the Adjudicator’s orders by deleting the order for the removal of the security camera, and to otherwise confirm the Adjudicator’s orders. 9 Under Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146(a). -- 8 of 8 --