Elanora Court [2001] QBCCMCmr 126 (27 February 2001)

P J HanlyREFERENCE: 0754-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	15211
Name of Scheme:	Elanora Court
Address of Scheme:	14 Jenaya Place, LABRADOR QLD 4215

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

Anthony John Alexander and Monica Alexander, the co-owners of Lot 2



I hereby order that the application by Anthony John Alexander and Monica Alexander, the co-owners of Lot 2 for an order that Pauline Powell, the owner of Lot 1 permit the installation of a pool in their backyard, is dismissed.


STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0754-2000

“Elanora Court” CTS 15211

The applicants, Anthony John Alexander and Monica Alexander, the co-owners of Lot 2 have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) that the owner of Lot 1, Pauline Valerie Powell, permit the installation of a pool in their backyard.

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 Ms Powell will not consent to the installation of a pool, as she is afraid Lot 1 could flood with a lot of rain, there will be noise from children and the pool pump, and that the backyard is too small. The applicants contend that Ms Powell will not discuss this matter any further.

A copy of the application was forwarded to Ms Powell. In her response to the application, Ms Powell gives the following five reasons for opposing the construction of a swimming pool; the close proximity of the pool to Lot 1, the noise which could emanate from the use of the pool, possible drainage problems, a possible adverse effect on the re-sale value of Lot 1 and issues relating to the construction of a pool.

“Elanora Court” was registered as a building units plan. The registered plan indicates that common property surrounds the building, which houses both lots in the scheme. The by-laws applicable to the scheme show that a substantial proportion of the common property around the building has been allocated for the exclusive use of each of the two lots in the scheme.

It would seem that the applicants propose to construct the swimming pool on that part of the exclusive use area of Lot 2 referred to as the “backyard”. The construction of a swimming pool is an improvement to the common property. Even though the owners of Lot 2 have a right of exclusive use, the relevant area is common property and an improvement to common property by a lot owner can only be effected in accordance with section 114 of the Body Corporate and Community Management (Standard Module) Regulation 1997 ("the Standard Module"). Section 114 provides:

Improvements to common property by lot owner—Act, s 121

114.(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.

(2) The improvement must be authorised by special resolution of the body corporate unless—

(a) the improvement is a minor improvement; and

(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and

(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.

(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.

(4) The owner of a lot who is given an authority under this section —

(a) must comply with conditions of the authority; and

(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

Generally, a lot owner who proposes to make an improvement to common property must seek the approval of the body corporate at a properly convened general meeting. If the body corporate rejects the proposal, the lot owner may seek an order of an adjudicator under the dispute resolution provisions of the Act. Under section 223(3) of the Act, an adjudicator may order the body corporate to agree to the proposal if satisfied that the body corporate’s decision is unreasonable.

In this scheme, the body corporate consists of the owners of Lots 1 and 2. Clearly, the applicants require the approval of the body corporate in general meeting and by special resolution. The only evidence of this matter being considered by the body corporate is the fact that the applicants approached the respondent who has objected to the proposal. A general meeting has not been convened to consider this issue in accordance with the legislation, and ordinarily any application of this nature for an order of an adjudicator would be dismissed on this basis. However, as there are only two lots in this scheme and both owners have provided information in respect of this issue, I have made an order as I consider that the decision to reject the proposal would not have been altered if a proper meeting had been held.

As I stated above, the decision of the body corporate to reject a proposal to make an improvement to common property can only be changed if it is shown that the decision was unreasonable. In my view, an objection would be unreasonable if it is without substance, plainly unfair, improper, or there is evidence of discrimination. The applicants have stated that they want to have a swimming pool and that Ms Powell will not listen to reason. However, the applicants have not shown that Ms Powell’s objections are unreasonable. For the following reasons, I am satisfied that the respondent’s objections are largely reasonable and as a consequence, the application is dismissed.

Firstly, Ms Powell has opposed the construction of the swimming pool on the basis of its proximity to her lot and the noise which may be generated by its use. She considers that the configuration of the buildings would result in the pool being close to the bedrooms of Lot 1. This is a valid consideration in a community titles complex. The proximity of the pool could adversely affect 1yher use of her lot and the common property, especially if noise is a factor. Ms Powell has raised the issue of noise which could emanate from the use of the pool. This is a valid consideration as I consider that people would be more inclined to use the “backyard” once a pool was constructed.
Although noise would not necessarily follow the use of a pool, in the absence of any assurances from the applicants to alleviate Ms Powell’s concerns and the proximity factor, I am satisfied that these are valid reasons to oppose the installation of a swimming pool.

Secondly, Ms Powell has raised the issue of drainage. Based on the photographs and a plumber’s report dated 10 January 2001 provided by Ms Powell, there currently is a problem with drainage. The applicants have not shown that this is an issue which can be resolved by the carrying out of appropriate work. Therefore, I consider that Ms Powell is entitled to rely on this factor as a reason to object to the construction of a pool.

I am of the view that Ms Powell has not been unreasonable in objecting to the construction of a swimming pool on the exclusive use common property allocated to Lot 2. For these reasons, I have dismissed the application.