Atlantis West [2000] QBCCMCmr 309 (28 June 2000)

P G DanielsREFERENCE: 0118-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8790
Name of Scheme:	Atlantis West
Address of Scheme:	2 Admiralty Drive PARADISE WATERS QLD 4217

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

Dr Griffith Jones a co-owner of lot 109



P G DanielsI hereby order that the owners of lot 109, Griffith Jones and Barbara-Anne Jones, by having weathershields on the railings and balustrades on a balcony of lot 109, are not contravening the

1.	Body Corporate and Community Management Act 1997
2.	Body Corporate and Community Management (Standard Module) Regulation 1997
3.	By-laws of the Atlantis West community titles scheme.1n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0118-2000

“Atlantis West” CTS 8790

The applicant Dr Griffith Jones, a co-owner of lot 109, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

Withdrawal of order to remove balcony weathershields.

Section 223(1) 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)).

The applicant’s lounge and family room was affected by water damage in 1991 due to water from a storm entering the lot.

As a means of preventing further damage, the owners of 109 installed weather shields on the outside of the balustrades on their balcony. The weathershields are clear Perspex sheets and are installed on the side of the balustrades that is within lot 109.

All owners were requested to remove weathershields by letter dated 5 December 1999 from the building manager, Win Johnson. That letter refers to an attached ruling from the body corporate manager, Stewart Silver King & Burns dated. The ruling raises the following issues, Safety, Wind Noise, Appearance and Fire Prevention.

The Committee obtained an engineering report in respect of weathershields attached to balustrades. It was provided by Kavanaugh McAnany and is dated 16 December 1999. The report relevantly states:

“The following design and approved criteria will therefore apply to all weathershields, glazing or other works where constructed along the outer edges of your building balconies.

1.	As the enclosure work will have an impact on the building Plot Ratio, fire separations and structure, approval for such work must first be obtained from Gold Coast City Council.
2.	All work must also be checked and certified as being structurally adequate by a registered professional engineer.

3.	Under no circumstances shall any additional loads (dead, live or wind) be applied to the existing building balustrades.

4.	All proposed balcony edge weathershields must comply with the Building Code of Australia. Fire Separations and Ratings must also comply with the various code requirements and, in particular, Clause C2.6 with respect “Vertical Separation of Openings in External Walls”.

5.	After approval by the local Council, approval from the Body Corporate must also be received.

Based then on these criteria and our understanding of the weathershields as installed at several units within your building, it is unlikely that Council would have approved them in the first instance.

Furthermore, should the weathershields be attached to the balcony balustrades, the integrity and adequacy of the balustrades would need to be checked and verified before submission to Council.”

The owners of lot 109 have never formally obtained Body Corporate approval for the weathershields. Although they state in a letter to the Body Corporate dated 26 February 2000 that the shields were installed, “... on the advice of Mr Bob Leahy, the building manager, Mr Johnson and the Body Corporate Chairman at that time, Dr D Botcher...” Dr Botcher has made the following statement, “I refer to Mrs. Griffith Jones’ claim that, during the period of my being Chairman of the Body Corporate, I gave her permission to install a “weathershield” on one or more of her balconies. I have no knowledge of this being so even in the event that I had the power to do so.” It seems approval was never obtained although there was some discussions with persons in management roles within the Body Corporate.

The owners of lot 109 were requested to remove their weathershields in two further letters dated 5 January 2000 and 14 February 2000. A copy of the engineering report was provided with both letters.

The letter of 14 February 2000 states that Committee members are of the view that the owners are in breach of by-laws 5 and 8. A submission from the Committee through the Secretary/body corporate manager supports the decision by reference to section 87 of the Act and the Body Corporate acting reasonably.

I will consider if the Body Corporate can require the removal of the weathershields due to a contravention of By-laws 5 or 8 or section 87 of the Act.

By-law 5 provides:

“5. Damage to common property.

An owner or occupier of a lot shall not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property except with the consent in writing of the body corporate, but this By-law does not prevent An owner or person authorised by him from installing:-

(a)	any locking or other safety device for protection of his lot against intruders; or

(b)

any screen or other device to prevent entry of animals or insects upon his lot provided that the locking or other safety device or, as the case may be, screen or other device is constructed in a workman-like manner is maintained in a state of good and serviceable repair by the owner and does not detract from any amenity of the building;

(c)	any damage or cost or costs for cleaning or repair caused by any breach hereof shall be borne by the owner or occupier of the lot concerned.

The balcony is part of the lot. The boundary of the lot is the extent of the balcony: see the building format plan and sections 48C and 49C(4) of the Land Title Act 1994. The railings and balustrades are part of the lot. From the photographs provided to me, they do not appear to extend past the balcony. Certainly, the side of the railings and balustrades that face lot 109 is part of the lot. That is the side on which the weathershields have been installed.

It will be observed that By-law 5 only applies to work performed on common property. As the work in this case was done to the lot, By-law 5 does not apply. I will now consider By-law 8.

By-law 8 provides:

“8. Appearance of building

(a)

An owner or occupier of a lot shall not, except with the consent in writing of the body corporate, hang any washing, towel, bedding, clothing or other article or display any sign, advertisement, placard, banner, pamphlet or like matter on any part of his lot in such a way as to be visible form outside the building.

(b)	All curtains or blinds on windows and glass doors must be backed in neutral cream colour to present a standard appearance for the building.”

I initially note that paragraph (b) does not apply to this case. Paragraph (a) contains two sets of articles that must not be hung or displayed “... in such a way as to be visible form outside the building.” The first set is “...washing, towel, bedding, clothing or other article...” The meaning of the words “other article” is constrained by the words preceding them. The other article must be of the same kind or similar to the preceding words. This is the ejusdem generis rule of interpreting legislation. The weathershields are not washing, towel, bedding or clothing nor are they of the same kind or similar to these items. I will now consider the second limb. Once again, the meaning of “like matter” is constrained by the preceding words. The weathershields are not a sign, advertisement, placard, banner or pamphlet nor are they like matter, of the same kind or similar to these items. Both limbs of By-law 8(a) do not apply to this case. In addition, even if one or both limbs applied, the weathershields are not visible from outside the building. Consequently, the Body Corporate cannot rely on By-law 8.

I will now consider section 87 of the Act. It provides as follows:

Body corporate’s general functions

87.(1) The body corporate for a community titles scheme must—

(a) administer the common property and body corporate assets for

the benefit of the owners of the lots included in the scheme; and

(b) enforce the community management statement (including the

by-laws affecting the common property); and

(c) carry out the other functions given to the body corporate under

this Act and the community management statement.

(2) The body corporate must act reasonably in anything it does under

subsection (1).

Section 114 of the Act is similar and provides as follows:

Body corporate’s duties about common property etc.

114.(1) The body corporate for a community titles scheme must—

(a) administer, manage and control the common property and body

corporate assets reasonably and for the benefit of lot owners; and

(b) comply with the obligations with regard to common property and

body corporate assets imposed under the regulation module

applying to the scheme.

(2) Nothing in this part, or in a regulation made under this part, stops—

(a) an item of personal property that is a body corporate asset from

becoming part of the common property because of its physical

incorporation with common property; or

(b) a part of common property from becoming a body corporate asset

because of its physical separation from common property.

The submission from the Committee through the Committee/body corporate manager relevantly states:

“As the balustrades, and therefore their consequent safety, are the responsibility of the Body Corporate the Committee believes that its action in seeking professional engineering guidance and requiring the removal of these attachments to the balustrades were correct and in line with its responsibilities under Section 87.”

It is correct to state that the Body Corporate must maintain the railings and balustrades in good condition. This duty arises from section 109(2)(a)(i) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation). However, section 109(3)(a) of the Regulation provides, “the body corporate is not responsible for maintaining fixtures or fittings installed by the occupier of a lot if they were installed for the occupier’s own benefit” Section 109(3)(a) would apply to the weathershields. They were installed by the owners/occupiers of lot 109 for their own benefit. The owners of lot 109 must maintain them in good condition: section 120 of the Regulation.

As stated above, the railings and balustrades are not part of the common property, at least the side that faces the lot. Sections 87 and 114 have no application as they apply to the common property and body corporate assets. Additionally, the maintenance obligation imposed on the Body Corporate by section 109(2)(a)(i) of the Regulation does not prevent improvements being made to balustrades and railings provided they are done within a lot and otherwise comply with the Act, Regulation and By-laws.

The weathershields do not contravene By-laws 5 or 8 or sections 87 or 114 of the Act.

The only legislation that may possibly apply is section 129 of the Act which provides as follows:

Nuisances

129. The occupier of a lot included in a community titles scheme must

not use, or permit the use of, the lot or the common property in a way

that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot

included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common

property by a person who is lawfully on the common property.

The concern of the Body Corporate which is supported by the engineering report is that the weathershields may not be structurally adequate, impose loads that can’t be reasonably supported by the balustrades and railings or affect the fire safety of the building.

Whilst these concerns may exist, it must be acknowledged that the weathershields have now been installed for 9 years and have not caused a problem. There is no evidence in the application that inclines me to a view that the weathershields result in a contravention of section 129 of the Act.

I have decided that there has been no contravention of the By-laws or the legislation. I will make an order to that effect. The order will mean that the Body Corporate cannot require that the weathershields be removed.

I inform the Body Corporate that if it wishes to regulate weathershields then it must pass an appropriate by-law. Alternatively, the Body Corporate may simply allow this matter to be regulated by the Council. I note in this case that Council has been involved with the matter. A letter written by the Council to the applicants dated 31 January 2000 refers to parts of the Building Code of Australia and Australian Standards. The Body Corporate may consider that these requirements are sufficient in respect of weathershields in the building.

Finally, I want to mention the fact that a significant number of submissions were received from owners in respect of this dispute. I wish to inform those owners that I have read their submissions and the various arguments they have placed in support and opposition to the application. However, as will be apparent from my reasons above, I have largely resolved this dispute based on a technical consideration of the legislation.