Picaninnie Body Corporate [2000] QBCCMCmr 559 (31 October 2000)

PJ HanlyREFERENCE: 0410-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19332
Name of Scheme:	Picaninnie
Address of Scheme:	8 Hercule Court, OXENFORD

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Picaninnie CTS 19332

I hereby order that within three (3) months of the date of this order, Anita Martin, the owner of Lot 5 shall remove from common property those bricks forming part of the temporary steps to Lot 5 and shall reinstate the common property to its original condition, unless within that time, Anita Martin receives body corporate authorisation to construct permanent steps on the common property.



STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0410-2000

“Picaninnie Body Corporate” CTS 19332

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), that Anita Martin, the owner of Lot 5 return the steps in front of Lot 5 back to the original appearance, which means complete removal of steps.

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 Anita Martin, the owner of Lot 5 has constructed steps on the common property without body corporate authorisation. The body corporate states that approval was given for Ms Martin to construct temporary steps and that final approval was to be given for the construction of permanent steps after an opinion had been obtained from a professional landscaper. The body corporate now seeks to have the temporary steps removed, as Ms Martin has not installed the permanent steps as was initially agreed.

The body corporate has included a copy of a letter from Ms Martin dated 24 January 2000 and a copy of the minutes of various committee meetings where this matter was considered. This documentation provides the following information. In early 1998, Ms Martin approached the then secretary, Lorraine Bartley concerning the construction of temporary steps in front of Lot 5. The committee approved this construction in principle subject to reviewing the opinion of a professional landscaper. In late 1999, Ms Martin obtained a quote to construct bush rock steps, but did not proceed, as she could not afford the expense at that time. Ms Martin then requested that the body corporate assist in the cost of the construction as part of the steps would be placed on the common property. At its meeting held on 20 September 1999, the committee resolved that the steps should be removed within 28 days. A further letter was forwarded to Ms Martin after an informal committee meeting held on 8 November 1999. By letter dated 24 January 2000, the body corporate informed Ms Martin that it was no longer prepared to extend further time in relation to the construction of permanent steps. At its meeting held on 15 May 2000, the committee resolved to lodge an application for an order with this office.

A copy of the application was forwarded to Ms Martin. In her response to the application, Ms Martin explains that the steps are a necessity due to the steepness of the slope leading to the building on Lot 5. She states that the steepness makes access dangerous, especially when the driveway is wet. Ms Martin contends that the initial approval did not stipulate a time limit, and that financial and personal constraints have contributed to the permanent steps not being constructed. Ms Martin has provided photographs showing the front of Lot 5, including the temporary steps, and the front of various other lots in the scheme.

“Picaninnie” was registered as a group titles plan on 5 January 1994. With the commencement of this Act on 13 July 1997, a group titles plan is now referred to as a standard format plan of subdivision. The boundaries of a lot in a standard format plan are defined by the plan of survey using a horizontal plane and references to marks on the ground (section 48B Land Title Act 1994). A standard format plan is a subdivision of land and therefore owners, although they are tenants in common of the scheme’s common property, have individual title to their lots as defined by the relevant boundaries shown on the scheme’s registered plan. That is, each owner owns the building on their lot, the land on which it is sited and the land lying between the external walls of the building and their lot boundary. The plan of survey shows that Lot 5 covers an area of 299 square metres, and that there is some land on its northwestern side in front of the building on the lot.

The body corporate has stated that the steps are on common property; a stance which has been confirmed by the respondent who has claimed that 2/3 of the steps would be on common property. Based on the photographs provided by Ms Martin, the brick steps extend from the common property driveway to the top of the slope in front of the building on Lot 5. The boundary between common property and Lot 5 is at some point between this driveway and the top of the abovementioned slope. For this reason, I am satisfied that the steps are partly constructed on lot 5 and partly constructed on the common property, however, on the material available, I am unable to be satisfied as to the extent to which the steps are on common property.

The body corporate has a legislative duty to control and manage the common property, and under section 114 of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module") a lot owner must seek body corporate authorisation before making an improvement to common property. Ms Martin must obtain body corporate approval before constructing steps on the common property. However, there is no legislative requirement, nor is there an applicable by-law which requires Ms Martin to seek body corporate approval in respect of the construction of steps on Lot 5.

The body corporate has sought an order that the steps on common property be removed. I consider that the view of the body corporate is reasonable given the time which has elapsed since the temporary steps were constructed. The initial approval in principle was subject to a review of the opinion of a professional landscaper. While a time frame was not included as part of the initial approval, the position of the committee has been obvious for some time. Further, the body corporate has a legitimate argument that the deteriorating condition of the steps may increase the likelihood of associated personal injury, for which the body corporate may be responsible.

By the same token, Ms Martin has valid reasons for the construction of steps. The steepness of the driveway could prove dangerous for both the occupiers of Lot 5 and their visitors. However, I consider that movement of the bricks forming the temporary steps could also be dangerous. It is unreasonable for Ms Martin to expect that the temporary construction could remain on common property without body corporate approval until such time as she could afford a more permanent construction.

For these reasons, I have ordered that Ms Martin must, within three months of the date of this order, remove from common property those bricks forming part of the temporary steps to Lot 5 and reinstate the common property to its original condition, unless within that period of time, she obtains the authority of the body corporate under section 114 of the Standard Module to construct the permanent steps on common property.