Saviane v Hope Island Resort Principal Body Corporate
[2013] QCAT 592
| CITATION: | Saviane v Hope Island Resort Principal Body Corporate [2013] QCAT 592 |
| PARTIES: | John Saviane and Wanetta Saviane (Applicants) |
| v | |
| Hope Island Resort Principal Body Corporate Michael Hill (Respondents) |
| APPLICATION NUMBER: | OCL055-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 24 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | K A Barlow QC, Member |
| DELIVERED ON: | 17 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application dismissed. |
| CATCHWORDS: | Integrated resort development – construction of dividing wall – whether in compliance with development control by-laws – whether encroachment on applicants’ property a matter to be dealt with by tribunal Integrated resort development – development control by-laws and secondary thoroughfare by-laws – whether application concerning mooring approval and location within jurisdiction of tribunal Integrated Resort Development Act 1987 ss 179A, 179B |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | John Saviane and Wanetta Saviane represented themselves |
| RESPONDENTS: | Hope Island Resort Principal Body Corporate represented by Jason Carlson of Hynes Legal Michael Hill – self represented |
REASONS FOR DECISION
Contents
The nature of this application
A preliminary issue – should I take account of further submissions?
The dividing wall
The parties’ submissions
Discussion
Jurisdiction to consider the pontoon
Conclusions and orders
Costs
The nature of this application
Hope Island Resort is an integrated resort development registered under the Integrated Resort Development Act 1980 (IRDA). Mr and Mrs Saviane own a property within that resort. Their property (referred to in this application as Lot 3) backs onto a canal, which is a secondary thoroughfare within the scheme for the resort. In this application, they complain about, and seek orders concerning, decisions of the respondent body corporate and actions of one of their neighbours (Lot 4), affecting both the front (street-side) and the rear (canal-side) of their property.
At the front of the property, they complain that the neighbour has constructed, and the body corporate has not required the removal of, a masonry dividing wall that extends close to the footpath, rather than ending in line with the front wall of the Savianes’ house (which is set back further from the front of their property than the neighbour’s house is set back from the front of its property). They also complain that the front footing of that wall also intrudes into the Savianes’ property by several centimetres.
As to the rear of the property, Mr and Mrs Saviane and their neighbours on either side each own a pontoon which extends from their respective properties into the canal. Each of the pontoons extending from Lots 2 and 4 was constructed, with the body corporate’s approval, in a location that has resulted in it being less than 500mm from the hypothetical extended boundary between the properties. Mr and Mrs Saviane contend that that breaches relevant by-laws and ought not to have been permitted by the body corporate. They seek orders, in effect, that would require that those pontoons be moved.
The second respondent, Mr Hill, is the present owner of Lot 4 (although he was not the owner when the pontoon and the wall were constructed).
Mr and Mrs Saviane also seek an order requiring the body corporate to approve their application to moor their new vessel at their pontoon. The body corporate contends that the vessel is too large to be moored there.
Finally, Mr and Mrs Saviane seek an order compensating them for their costs relating to this application, including the costs of obtaining evidence.
A large number of interlocutory applications were filed by the parties shortly before the hearing of the application. I dealt with most of them at the hearing of the application. There remains one outstanding interlocutory application by the body corporate: by an application filed on 29 April 2013 it sought an order that those parts of the application seeking orders 4 to 7 (which concern the pontoons and the Savianes’ mooring licence) be struck out for want of jurisdiction. That is, it contends that the tribunal does not have jurisdiction to hear and determine those aspects of the application. Rather, it says, as the pontoons are on a secondary thoroughfare, they must comply with the secondary thoroughfare by-laws and any dispute about them can only be dealt with by a referee appointed pursuant to part 5 of the Buildings Units and Group Titles Act 1980 (BUGTA).
Given that the body corporate’s application was filed so close to the final hearing date, on 10 May 2013 I directed that it be heard with the principal application, which is what occurred.
A preliminary issue – should I take account of further submissions?
At the conclusion of the hearing on 24 May 2013, I made directions giving the respondents leave to file additional written submissions concerning the Savianes’ application about the dividing wall, and giving Mr and Mrs Saviane leave to file additional submissions in response to the respondents’ submissions on that issue. I did so because, in the course of the hearing, Mr and Mrs Saviane raised a new ground for the orders they sought: namely, that the dividing wall was constructed without authorisation under the Neighbourhood Disputes Resolution Act 2011[1] and, under s 39 of that Act, the tribunal could order that it be removed. Nonetheless, they expressly disclaimed any desire to amend this application to seek orders under that Act.
[1]I shall refer to it as the Neighbourhood Disputes Act and to the issue raised as the dividing fences issue. In fact the Act is now called the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011; its title was amended with effect from 26 February 2013.
Since the hearing:
a) the body corporate filed a submission on the dividing fences issue;
b) Mr Hill filed a submission simply adopting the body corporate’s submission;
c) Mr and Mrs Saviane subsequently filed 5 sets of submissions, 4 of which dealt with substantive matters, but only one of which responded to the body corporate’s submissions on the dividing fences issue; the remainder sought to make additional submissions on the other issues;
d) the body corporate has objected that the tribunal should not have regard to those additional submissions on the other issues;
e) Mr and Mrs Saviane (in their 5th additional submissions) say that their additional submissions are made pursuant to ss 28 and 95(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and address issues raised by the body corporate during, or shortly before, the hearing and which, it seems, they feel they did not adequately address during the hearing.
Before the hearing, Mr and Mrs Saviane:
a) filed with the application, detailed written submissions addressing the substantive issues and the orders which they sought; and
b) filed 3 written submissions addressing the body corporate’s application to strike out paragraphs 4 to 7 of the principal application on the jurisdictional ground.
The hearing itself lasted from 9.30am to 4.45pm (with a 1 hour break for lunch), a total of 6.25 hours of which more than 2 hours were spent dealing with the strike out application.
The tribunal is required by s 28 of the QCAT Act, among other things, to observe the rules of natural justice, and to act with as little formality and technicality and with as much speed as the requirements of that Act and an enabling Act, and a proper consideration of the matters before it, permit. Section 95 requires the tribunal to allow a party to a proceeding a reasonable opportunity to make submissions to it.
Also relevant to this question are ss 3(b) and 4(c) of the QCAT Act, which respectively provide that the objects of the Act include:
a) to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick; and
b) in order to achieve the objects of the Act, the tribunal must ensure that proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice.
I am conscious that Mr and Mrs Saviane are not legally represented, while the body corporate is. However, they had plenty of opportunity to understand and address the body corporate’s submissions on the issues, including the issue of jurisdiction, before and at the hearing. That is one of the purposes of the pre-hearing directions for exchange of written submissions.
There must be an end to the opportunities afforded to parties to make submissions to the tribunal. Otherwise there could be an endless exchange of submissions responding to each other’s earlier submissions, which would not only delay the conclusion of a case, but is likely to add to the parties’ costs. The time for submissions normally ends at the close of the hearing of the application.
In this case, I allowed further written submissions on one discrete issue that had been raised for the first time during the course of the hearing. Mr and Mrs Saviane had had ample earlier opportunities to address all the issues raised and the submissions made by the body corporate. They did not seek, and were not given, leave to make additional submissions about other matters discussed during the hearing.
In the circumstances, I do not consider it appropriate to take into account the submissions filed by Mr and Mrs Saviane after the hearing other than the submission responding to the body corporate’s submission on the dividing fences issue. For clarity, the Savianes’ submission on that issue was dated 10 June and filed on 12 June 2013 and paragraphs 1 to 14 of the submission concern that issue. I shall take those paragraphs into account, but I shall not consider the remaining paragraphs of that submission, nor the submissions dated 2 June, 13 June and 23 June and filed respectively on 4 June, 18 June and 26 June 2013.
The dividing wall
The parties’ submissions
When the previous owner of Lot 4 (now Mr Hill’s property) built their house, they built a new section of a 2 metre high masonry block wall along the common boundary with Lot 3 (the Savianes’ property), extending roughly from the front elevation of the Savianes’ house forward approximately 6 metres toward the front of the properties, terminating approximately in line with the front elevation of the house built on Lot 4.
The body corporate has had the wall surveyed, after complaints from the Savianes. The survey shows that along most of its length, the eastern side of the wall (which faces the Savianes’ property) is about 2 centimetres to the western side of the common boundary (that is, it is wholly within Mr Hill’s property). However, at the front of the block wall is a square pillar, the eastern side of which extends 9cm into the Savianes’ property.
The Savianes have 2 principal complaints about the wall and seek 2 alternative orders concerning it.
First, they say that, in extending beyond the front elevation of their house, the wall does not comply with the Development Control By-laws (DCBL), and they seek an order that the approval for its construction given by the body corporate be rescinded and the body corporate take steps to require Mr Hill (as the current owner of the property) to remove the wall, or the body corporate itself remove the wall and replace it with soft vegetation.
Secondly, they complain about the encroachment of the pillar and seek an order, in the alternative to the first order, that the body corporate remove (or, I understand, take steps to require Mr Hill to remove) that part of the wall that encroaches.
They also originally sought an order requiring the wall to be painted, if it was not removed, but that has since been done and therefore they no longer seek such an order.
In essence, the Savianes’ submissions were:
a) DCBL 2.03 requires that all development comply with by-law 3 and all statutory requirements;
b) DCBL 3.07, figure 4, shows that there should be no boundary fences from the front elevation of the dwelling on a lot to the front of the lot (it also requires the front elevation to be set back at least 6 metres from the front of the lot);
c) as the Savianes’ house was already existing, a boundary fence between the 2 properties was not supposed to extend beyond the front elevation of their house, rather than that of the house on Lot 4;
d) the body corporate wrongly approved the construction of the wall, as it does not fit with the design objectives in DCBL 1.02 and 1.05;
e) the approved design does not show a pillar at all, let alone one that encroaches onto the Savianes’ land – it shows all the wall on Lot 4;
f) the wall therefore does not comply with the by-laws, either entirely or in the construction of the pillar;
g) DCBL 5.04 provides that, if anyone does not comply with the development guidelines in by-law 3, the body corporate may enter the relevant lot and remedy the breach in any way it considers necessary, including removing the offending development or any part of it, at the expense of the occupier of the lot;
h) therefore, the body corporate should be ordered, under s 179B of the IRDA, to remove the wall, or at least that part of it that encroaches onto to the Savianes’ land (and presumably charge the cost of doing so to Mr Hill).
They also submitted at the hearing, and in the later approved written submissions, that the construction of the wall (and in particular the encroachment) was in breach of s 39 of the Neighbourhood Disputes Act, which requires a land owner to obtain authorisation of the neighbour or QCAT before building a dividing fence, and therefore the wall does not comply with relevant statutory requirements and was built in breach of DCBL 2.03.
The body corporate submits that:
a) the wall as approved complies with the DCBL, as figure 4 requires that there be no dividing wall forward of the front elevation of the house built on each particular lot, without any reference to the house on adjoining lots, and the wall in this case, as approved, was in line with the front elevation of the house to be built on lot 4;
b) the pillar is part of the necessary footings and front structure of the wall and, although not shown on the approved plan, that was not necessary;
c) in any event, any issue of encroachment is not a matter involving the body corporate, nor within QCAT’s jurisdiction: Part 11 of the Property Law Act 1974 provides that the Supreme Court has jurisdiction to make orders concerning encroachments;
d) when the wall was constructed (in June 2011), the law governing dividing fences was the Dividing Fences Act 1953, which did not have an equivalent to s 39 of the Neighbourhood Disputes Act, so the latter is irrelevant;
e) in any event, s 39 does not require that authorisation be obtained before building a dividing fence, but only allows a property owner whose consent was not obtained to apply to QCAT for an order under that section, which QCAT may or may not give, in its discretion;
f) there has therefore been no breach of the DCBL, so that s 179B of the IRDA does not apply.
In reply, Mr and Mrs Saviane said that the wall was built in less than one month after a notice to fence was delivered to them, and it was therefore built contrary to the Dividing Fences Act and, consequently, in breach of DCBL 2.03.
Discussion
I do not consider that the extension of the wall past the front elevation of the Savianes’ house breaches the DCBL. Figure 4 clearly provides that a dividing wall should not extend beyond the front elevation of the house on the property on which the wall is to be built. It does not require that it take into account the front of the house on the neighbouring property. The fact that the Savianes’ house is built further back from the front boundary than required (ie, more than a 6 metre setback) does not affect what may be built on the neighbouring property. The owner of that property was entitled to build a house and a dividing wall up to 6 metres from the front of the lot, and the house and wall as built comply with that requirement.
Part 2 of the Dividing Fences Act concerned “construction of dividing fences”. Section 9 provided that, if the neighbours could not agree on a fence within one month after a notice to fence was served, either person may apply to a Magistrates Court or QCAT for an order determining the kind of fence and the respective contributions toward its cost, and associated matters.
Mr and Mrs Saviane informed me that the owner of Lot 4 applied to QCAT for an order claiming a 50% contribution from them for the cost of building the wall, which was dismissed because they had not been given adequate notice.
However, inadequate notice does not mean that the wall was built in breach of that Act. And furthermore, if the Savianes were dissatisfied with the erection of the wall, they could have made an application to the tribunal under s 9 of the Act at the time.
Such a dispute is between neighbours. It does not need to involve, and should not involve, the body corporate.
I therefore do not consider that the length of the wall breaches the DCBL.
As for the pillar, however, it clearly encroaches on the Savianes’ land, for which they did not give permission. The body corporate could not have approved such an encroachment, however minor it may be. Although it has power to permit non-compliance with the by-laws if it is of a minor nature, that only extends to non-compliance “as to the particular lot” (that is, in this case, Lot 4): DCBL 4.10.1.
I agree with the body corporate’s submission that any complaint about encroachment is a matter that can only be dealt with by the Supreme Court under Part 11 of the Property Law Act. Section 183 of that Act provides that division 1 of that part (dealing with the encroachment of buildings, including walls) applies despite the provisions of any other Act. That has been held to mean that disputes concerning encroachments are to be dealt with by the Supreme Court alone.[2] I consider myself bound to follow that decision.
[2] McDonald v Clark [2012] QSC 418 at [46].
Accordingly, this tribunal cannot order the body corporate to remove that part of the wall that encroaches on the Savianes’ land. If they wish to pursue that matter, they should deal with Mr Hill and, if he will not agree to remove it, if they wish to seek an order for its removal they will need to apply to the Supreme Court.
Jurisdiction to consider the pontoon
Before considering the merits of the Savianes’ application concerning the pontoon on Lot 4, I propose to consider the jurisdictional issue raised by the body corporate.
In order to consider that issue, I shall briefly set out the basis of the Savianes’ application.
In essence, they contend that:
a) the location of pontoons, and particularly their relationship one to another and to the theoretical extended boundaries of lots within the residential precinct, are governed by Figures 28 and 29 of the DCBL, which relevantly show that:
i)a mooring on lot 4 should have been close to the boundaries of lots 4 and 5, not (as it is) lots 4 and 3;
ii)furthermore, the edge of a mooring must not be within 50 centimetres of the extended boundary with the neighbouring lot;
b) the pontoon on lot 4 breaches both those requirements, as it is constructed close to the boundary of lots 4 and 3 and is much closer than 50cm to the boundary of lot 3;
c) similarly, the pontoon on lot 2 is closer than 50cm to the boundary of that lot with lot 3;
d) both pontoons were therefore constructed (with the body corporate’s approval, which ought not to have been given) in breach of the DCBL.
The body corporate submits that:
a) under s 179B of the IRDA (on which the Savianes rely), QCAT has jurisdiction to deal with a matter relating to a contravention of a development control by-law for an approved scheme;
b) the Hope Island Resort comprises the primary thoroughfare, the secondary thoroughfare and residential precincts;
c) the Savianes’ and their neighbours’ lots are lots on a group titles plan known as Gracemere Waters North established under the BUGTA, which is a subsidiary scheme and a residential precinct within the Hope Island Resort; the body corporate for that scheme is a member of the Hope Island Resort Principal Body Corporate;
d) the principal body corporate’s statutory functions relevantly include controlling, and making by-laws for the use of, the secondary thoroughfare; and making by-laws regulating the quality of design and development in the residential precincts;
e) the secondary thoroughfare by-laws (STBL) govern the secondary thoroughfare, while the DCBL govern development in the residential precincts;
f) the canals within the Hope Island Resort are part of the secondary thoroughfare, not the residential precincts;
g) the design and location of moorings on the canals are governed by the STBL, not the DCBL;
h) the inclusion of figures 28 and 29 of the DCBL is a clear error, as the DCBL do not, and cannot, provide for structures in the secondary thoroughfare; rather, those figures are (at most) intended to be guidelines issued under the STBL;
i) moorings are not “Development” as defined in the DCBL;
j) any dispute about an alleged contravention of the STBL falls under s 170 of the IRDA and therefore can only be dealt with under part 5 of the BUGTA by a referee, or in court of competent jurisdiction under s 119 of the BUGTA;
k) approval of moorings is also governed by the STBL, not the DCBL;
l) therefore QCAT does not have power to deal with this dispute under s 179B of the IRDA.
Mr and Mrs Saviane contend that:
a) the relevant figures are not in the STBL, but are in the DCBL;
b) DCBL 2.03 and 5.04 require that Development must comply with the requirements set out in by-law 3, which includes the figures;
c) DCBL 4.04(v) and 4.05.1C provide for applications to the principal body corporate for approval of moorings, which are referred to as “Development”;
d) approval of the moorings therefore falls within the DCBL; and
e) therefore the dispute falls within s179B of the IRDA.
The confusion arises because of the wording of the DCBL and the inclusion in them of figures 28 and 29 and the necessary interaction between the STBL and the DCBL.
Under the DCBL, “Development” relevantly is defined to mean construction on a “Lot” and “Lot” means a lot on a group titles plan or a building units plan in the resort. A pontoon, and the piles for a pontoon, are not constructed on a Lot, and therefore do not fall within the definition of “Development”, nor can their construction be controlled by the DCBL. Nevertheless, the attachment of a pontoon to the land comprising a lot is constructed on the lot.
At first it would seem that there is therefore scope for both the DCBL and the STBL to govern the construction of moorings. However, it seems to me that a necessary part of a mooring is its attachment to the land, which must clearly be sufficient to support the mooring. In order to control the construction of a mooring within the secondary thoroughfare, it must be possible (and indeed necessary) to make a requirement of that construction that a suitable attachment be constructed on the associated land.
The positioning and construction of a mooring, including the land anchor or attachment, must therefore be covered by the STBL, although it may be necessary for the DCBL to provide, for example, that any Development comprising such an attachment must comply with any requirements imposed under the STBL.
It is unfortunate that the STBL and the DCBL have been drawn in such a confusing manner, and in a manner that purports to extend the DCBL beyond their permissible scope. To the extent that they purport to govern the placement and construction of moorings, it seems to me that the DCBL are invalid. It also seems to me that no guidelines have been issued under the STBL, in which case by-law 2.04.4(b) effectively requires that a mooring be consistent with other moorings used by other proprietors of tidal land.
While it may certainly be arguable that the moorings on lots 2 and 4 are not consistent with other moorings, that would require evidence of the locations of other moorings, which is not before the tribunal at this stage. In any event, an application concerning that issue would be concerned with the STBL, not the DCBL, and would therefore have to be made under the BUGTA.
The same must be said about the issue and terms of a mooring licence agreement between the body corporate and owners of lots. They are controlled by the STBL.
I therefore agree with the body corporate that the application for orders 4 to 7 is not within QCAT’s jurisdiction. I am therefore obliged to dismiss that part of the application without considering the question whether the pontoons on lots 2 and 4 should be moved.
Conclusions and orders
In the light of my conclusions on each of the issues, the application should be dismissed.
Costs
The principal application was filed by Mr and Mrs Saviane on 22 June 2012. Notice of the hearing date was sent to the parties on 27 March 2013, a large number of directions having been made in the interim.
It was not until 29 April 2013 that the body corporate filed its application seeking to strike out the principal application in respect of orders 4 to 7 on the ground that they were beyond the tribunal’s jurisdiction.
In its submissions supporting its application to strike out, the body corporate said it did not seek any order for its costs even if the application was successful.
In a letter dated 26 June 2013, the body corporate’s solicitors said that it had made that statement about costs on the assumption that the decision on its application would be made on the papers before the final hearing, as was directed on 19 April 2013. If successful, the body corporate expected that it would not be put to the costs of dealing with the substantive issues arising under those orders. It therefore said that, given that it had to deal with the substantive issues, it would like to make submissions on costs if its application was successful.
The application to strike out for want of jurisdiction was made very late in the history of this application. On 10 May 2013 I directed that it be heard with the principal application on 24 May 2013. Therefore it was necessary (as it always had been, unless and until the strike out application was successful) for the parties to address the substantive issues, even though, as it turns out, I have found it unnecessary (as they are not within my jurisdiction) to resolve them.
The necessity for the parties to prepare and argue the substantive issues arose principally because of the lateness of the strike out application. Notwithstanding the direction made on 19 April, it was not practicable for the tribunal to deal with the strike out application before, and separately from, the hearing of the principal application without adjourning the principal application. I considered that to be inappropriate given that the matter had been on foot (and had been set down) for some time.
In the circumstances, I do not consider it appropriate to make any order for costs. Nor is there a need for any further submissions on that question, which would simply add to the expense and delays of the proceeding.
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