River Gables [2000] QBCCMCmr 179 (7 April 2000)

P J HANLYREFERENCE: 0144-2000

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	22337
Name of Scheme:	River Gables
Address of Scheme:	15-21 Hooker Boulevard BROADBEACH WATERS QLD 4218

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

Joan Bussey, the co-owner of lot 1



I hereby order that the owners of lot 13, John Robert Stubbs and Sheila Stubbs, shall not proceed further with any construction associated with the proposed remodelling of the patio of lot 13 until further order of this office.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0144-2000

“River Gables” CMS 22337

The applicant Joan Bussey, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

Stop any changes or construction to body corporate common area without the approval of a general meeting of the body corporate.

The applicant has also sought the following interim order of an adjudicator, quote –

As above, as suspected construction etc. would change the appearance of the development.

Section 225(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. 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 she has been advised by Sheila Stubbs that the Council had given authority to extend onto common property. The applicant further states that the body corporate is unable to confirm if authority had been given, and it would not be appreciated if the existing profile of the property were to be altered.

The owners of lot 13 were invited to respond to the application. Mr Stubbs stated in his reply that the existing patio was approved by the Albert Shire Council in 1991. Mr Stubbs also enclosed a copy of a letter dated 22 April 1991 from the secretary of the body corporate to the Albert Shire Council stating that the body corporate had no objection to the timber extension to the terrace of lot 13. Mr Stubbs explained that it was his intention to replace the front wooden patio, as it is rotting and dangerous. Mr Stubbs further explained that it was his intention to construct the new patio in line with the roof, so as to straighten the patio, and so as to match the patio which exists on his next door neighbour’s lot. Mr Stubbs further stated that the proposed patio will not extend beyond the property line. Mr Stubbs further stated that he has had no objections to his proposal from his adjoining owners.

Mr Stubbs has provided a number of photographs with his reply, however, I cannot determine from those photographs whether the proposed patio will extend onto common property. It will be necessary for me to inspect the scheme, and the lot in question, to make such a determination. I can ascertain from the photographs, and the sketch plan, that the proposed patio will extend over a different area than the existing patio (even if the total floor area is the same), but this does not assist in determining the primary question, namely whether common property is involved.

Although the body corporate authorised the existing patio in 1991, it may be necessary for the owners of lot 13 to seek a further approval if the proposed patio does extend onto common property. Section 114 of the Standard Module regulates the manner in which improvements to the common property by a lot owner may be authorised by the body corporate.



In the circumstances, I intend to make an interim order that the owners of lot 13 shall not proceed with any construction associated with the proposed remodelling of the patio of lot 13 until further order of this office. I am making this order simply to preserve the status quo, and neither party should consider that the order in any way reflects what my final determination may be.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a) has effect for a period (not longer than 3 months) stated in the order; and

b) may be extended, renewed or cancelled by the adjudicator until a final order is made; and

c) may be cancelled by a later order made by the adjudicator; and

d) if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. In particular, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.2n