Surfers Links [2000] QBCCMCmr 149 (21 March 2000)

P J HANLYREFERENCE: 0731-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	23400
Name of Scheme:	Surfers Links
Address of Scheme:	5 Bronberg Court SOUTHPORT QLD 4215

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Raymond Patrick Pollard & Gloria Georgina Pollard, the owners of lot 13

I hereby order that the owners of lot 13 shall be permitted to retain the clothesline erected on the eastern wall of lot 13.

I further order that the body corporate shall not remove the golden cane palms from between lots 12 and 13 unless independent evidence is provided that the golden cane palms pose either a health or security risk, or are a threat to the structural integrity of the buildings.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0731-1999

“Surfers Links” CTS 23400

The applicants Raymond Patrick Pollard & Gloria Georgina Pollard, the owners of lot 13, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

That the committee of the Surfers Links body corporate do not order the removal of the clothesline from the eastern wall of unit 13 nor do they remove the golden cane palm trees from between units 12 and 13.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

In the supporting grounds, the applicants state that their clothesline attached to the eastern wall of their lot has been in place for the past 4½ years, and that it is only recently since the applicants have challenged the committee on certain decisions it has made in relation to other matters that the removal of the clothesline has become an issue. The applicants further state that there are at least 15 illegally erected clotheslines within the complex, and at least one of those is on a balcony. The applicants claim that no action is being taken on these clotheslines.

The committee of the body corporate was invited to respond to the application. The body corporate manager subsequently provided a response on behalf of the committee. The manager provided an historical background to the installation of the clothesline on the eastern wall of the applicants’ lot. The manager denied that the committee has acted in bad faith in requesting that the clothesline be removed. The manager also addressed the issue of the golden cane palms, and concluded by stating that the committee believes that the presence of the golden cane palms restricts the flow of air and light into the grassed area, thereby preventing the grass from growing properly.

The applicants replied to the submission from the body corporate manager, and stated that the illegal clotheslines to which they referred in their application were additional clotheslines erected by the developer after the handover date of the building, when the developer was having difficulty selling the lots to which clotheslines had not been fitted originally. The applicants contend that no permission was ever sought for these clotheslines. The applicants also challenged the manager’s contention that other owners had sought permission to erect similar clotheslines, and had been refused. The applicants noted that the committee minutes reveal that the only such application was made by a tenant, to whom permission could not have been given.

I note that the minutes of a committee meeting held on 19 July 1995 reveal that the applicants’ request to install a clothesline on the eastern wall of their lot was considered by the committee and was referred to the next general meeting of the body corporate. The manager stated in his submission that the minutes record that the matter was not within the jurisdiction of the committee and was therefore referred to the next general meeting. On the face of the minutes provided to me, the word “not” has been deleted and initialled, thereby recording that the “matter was within the jurisdiction of the committee of the body corporate as the clothes line was on common property and referred to next general meeting.” At the time that the applicants made their request in 1995, the Act under which such matters were required to be considered was the Building Units and Group Titles Act 1980 (BUGTA). Section 37A of BUGTA provided for improvements to common property by a proprietor of a lot, whereby the body corporate could, by resolution without dissent, authorise a proprietor, on such terms as it considered appropriate, to effect improvements (including to erect or to install fixtures and fittings) in or upon the common property for the benefit of that proprietor. It therefore seems likely that the minutes of the committee meeting held on 19 July 1995 were intended to record that the matter was not within the jurisdiction of the committee.

In any event, the matter was not referred to the next, or any other, general meeting of the body corporate. Accordingly, the body corporate did not approve the installation of the clothesline under BUGTA. However, on 13 July 1997 the Body Corporate and Community Management Act 1997 came into force. Section 114 of the Body Corporate and Community Management (Standard Module) Regulation 1997 provides the mechanism whereby improvements to common property may be made by an owner. The improvement must be authorised by special resolution of the body corporate unless the improvement is minor (i.e. with an installed value of less than $200.00), does not detract from the appearance of any lot or the common property and the body corporate is satisfied that the use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.

From the photographic evidence provided with the application, I consider that the improvement in question is a minor improvement, does not detract from the appearance of the lot or the common property and that its use is not likely to promote a breach of the owners’ duties as occupiers. Accordingly, the improvement would not need to be authorised by a special resolution of the body corporate, and the committee could authorise the improvement under section 114(1) of the Standard Module. It is apparent from the committee’s request to the applicants, conveyed by the body corporate manager on 29 September 1999, that it does not authorise the improvement. However, I am satisfied that as the line has been in situ for approximately 4½ years without action being taken by the committee, that the committee has acquiesced to its presence. I consider that it is no mere coincidence that the committee has requested that the line be removed following upon the applicants’ vociferous complaints contained in the letter to the chairperson and the committee dated 19 August 1999. I therefore propose to order that the applicants shall be permitted to retain the clothesline erected on the eastern wall of lot 13. I also propose to order that the golden cane palms situated on the common property between lots 12 and 13 shall not be removed by the body corporate unless independent evidence is provided that the golden cane palms pose either a health or security risk, or are a threat to the structural integrity of the buildings. In making this latter order I am mindful of the body corporate’s contention that the poor growth of grass in this area has been brought about by the presence of the palms. The applicants, on the other hand, contend that the problem has been caused by water retention in the area, caused by shallow topsoil and poor drainage. My decision has been based on the fact that the golden cane palms provide an effective screen for the clothesline, as well as serving to beautify the area in question.2y2y