Kapalua [2000] QBCCMCmr 172 (31 March 2000)

P J HANLYREFERENCE: 0698-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7868
Name of Scheme:	Kapalua
Address of Scheme:	3503 Main Beach Parade MAIN BEACH QLD 4217

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

Robert William Easson, the owner of lot 6

I hereby order that the owner of lot 1, Ridimomalola Pty Ltd, shall within 1 month of the date of this order, and at its own expense, remove the timber decking constructed on common property without body corporate approval.
I further order that in the event that the timber decking is not removed as ordered above, the body corporate shall be authorised to arrange for the timber decking to be removed, at the expense of the owner of lot 1.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0698-1999

“Kapalua” CTS 7868

The applicant Robert William Easson, the owner of lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the timber deck erected by the owners of unit 1 on common property and without body corporate approval, be removed at no expense to the body corporate.

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 applicant states that the timber deck was erected on common property without body corporate approval. The applicant further states that the deck is not compatible with the existing building, and covers part of the professionally landscaped garden.

All owners were invited to respond to the application. No responses were received.

I note that on 24 September 1999 the body corporate manager wrote to Mr Rino Grollo, a director of the company which owns lot 1, advising that the structure which had been erected adjacent to the SE corner of lot 1 (the timber decking) required the consent of the owners in general meeting, as it extended onto common property. The body corporate manager also pointed out that the structure may have required Council approval. Mr Grollo responded to the body corporate manager on 24 September 1999, and stated that the “maintenance work” that was being done on his behalf was for his “own safety and protection”. Mr Grollo further stated that there would be no cost to the body corporate and he expected full co-operation from the body corporate. Mr Grollo further stated that there was no need for any Council permits, and “no need for any one to create a fuss”.

Exclusive use of the courtyard area immediately in front of lot 1 has been granted to lot 1 by the body corporate by resolution without dissent passed on 14 July 1986. That courtyard area is delineated on a plan attached to the by-laws, recorded with the Registrar of Titles on 1 October 1986. The timber decking in question is situated to the side of the courtyard area, and does not form part of the exclusive use allocation already made.

Section 114 of the Body Corporate and Community Management (Standard Module) Regulation 1997 provides the mechanism by which improvements may be made to common property by a lot owner. Section 134 of the Act details the requirements for an exclusive use by-law. The timber decking is unquestionably erected on common property. It is arguable that it may constitute an exclusive use of the common property by the owner of lot 1, and therefore requires a resolution without dissent to authorise its existence. At the very least, it is an improvement to common property by an owner, and requires a special resolution to authorise its existence. The owner of lot 1 has not sought any approval of the body corporate to erect the timber decking. I do not accept that the timber decking falls into the category of maintenance, as asserted by Mr Grollo in his letter dated 24 September 1999 to the body corporate manager. The timber decking is a new structure. There is also no evidence before me to support Mr Grollo’s assertion that the timber decking is required for his safety and protection.

I have today spoken with an employee in the building section of the Gold Coast City Council, Mr Bill Shue, who advised me that building approval is required for timber decking that has a height above the ground level of more than 900mm. I have been provided with photographs of the timber decking, and it may be that the top right hand corner of the decking is in fact at a height greater than 900mm above ground level. It is therefore arguable that the decking may also require Council approval.

Notwithstanding any possible requirement for Council approval, the timber decking has not been authorised by the body corporate, and I am therefore satisfied that it should be removed by the owner of lot 1, and at the expense of the owner of lot 1. I have ordered accordingly. I have also ordered that, in the event that the owner of lot 1 does not remove the timber decking within the time allowed by my order, that the body corporate shall be authorised to remove the timber decking, at the expense of the owner of lot 1.2n