Section 160 of the Body Corporate and Community Management Act 1997 – Obligation of owners and occupiers to maintain, states:

‘The regulation module applying to a community titles scheme may impose obligations about the conditions in which lots included in the scheme must be maintained’

Using the Standard Module as the example for the purposes of this article, Section 211 states:

1. This section applies only to a lot that is not a community titles scheme.
2. An occupier of a lot included in the scheme must keep in a clean and tidy condition the parts of the lot readily observable from another lot or common property.
3. The owner of a lot included in the scheme must maintain the lot in good condition.
4. The owner’s obligation under subsection (3) does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition.
5. The owner of a lot included in the scheme must maintain in good condition the utility infrastructure within the boundaries of the lot, and not part of common property and, if the utility infrastructure is in need of replacement, must replace it.

This also applied to vegetation that is growing within the boundaries of the lot to ensure that the vegetation does not cause damage to the lot, common property or another lot – or cause nuisance to another lot owner or occupant.

In this months adjudicators order, we review a case where the applicant is seeking an order that another lot owner (the respondent) remove or prune vegetation on their lot that is obstructing the views / or likely to obstruct the views enjoyed by the applicant and any other lot.

The adjudicator reviewed the respective by laws for the scheme and noted that, while the by law in force at the time the application was made was poorly worded, reading the by law as a whole did allow for the provisions to be applied to vegetation on a lot. It is worth noting that the by laws have since been revised, to make it clearer that the by law referred to not only vegetation on common property, but also on a lot.

The adjudicator received ten submissions from owners supporting the application, however one submission did suggest that the respondents believed they were not in breach of the by-law because they did not “plant or cultivate” the vegetation which is noted in the by law that was in force at the time the application was made. The adjudicator responded to this comment noting that the respondents, in failing to respond to the application, they have not commented on this either way, however, even if they had not personally plant the vegetation this did not obviate them from the responsibility under the by law of managing vegetation on their lot and further noted – An owner or occupier must take their lot as they find it and remain responsible for it, including any alterations or improvements made or allowed to be made by their predecessors.

An order was made that within 30 days of the order being made, the respondents at the own expense are to comply with all directions of the Committee to cut down or prune any trees, shrubs or other vegetation on the lot that obstructs or is likely to obstruct the views enjoyed from any other lot.

The full order can be read: http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2021/150.html