Tarwarri Lodge [2001] QBCCMCmr 171 (23 March 2001)

P G DanielsREFERENCE: 0009-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11779
Name of Scheme:	Tarwarri Lodge
Address of Scheme:	10 Tarwarri Crescent MOOLOOLABA QLD 4557

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

Tim Mills and Susan Howard-Mills the owners of lot 4



P G DanielsI hereby order that the application for the following order:

We seek permission to level the area of common property in front of unit 4, all associated expenses will be met by owners of unit 4.

is dismissed.1y
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0009-2001

“Tarwarri Lodge” CTS 11779

The applicants, Tim Mills and Susan Howard-Mills, the owners of lot 4, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) that:

We seek permission to level the area of common property in front of unit 4, all associated expenses will be met by owners of unit 4.

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)).

This application relates to a request by the applicants to level an area of the common property to the north of lot 4. The request was refused. The background is as follows.

The owners of lots 3 and 4 forwarded a letter to the Secretary dated 13 June 2000 seeking Body Corporate authority to level an area of common property to the north of lots 3 and 4. (The application appears to have been signed by only one co-owner of lot 4, although that is not of relevance to the resolution of this dispute.) The stated purpose of the application is to allow greater use of the area by removing the slope. The application to the Secretary relevantly states the following:

“C. Proposed Works.

1.	The retaining wall at the front of the property would be raised to the level of the patio area of the units. Construction would be from treated timber, which would match in to the railings on the units, providing a barrier to white ants and would flow in a natural progression to the retaining wall alongside unit 3.
2.	The area would be sloped naturally at the side boundaries of area to provide a natural look.
3.	Drainage would be installed to stop run off to areas at the side of the proposed works.
4.	The area would then be levelled and landscaping carried out.

The owners of units 3 and 4 will be responsible for all or any permits required by the Maroochy Shire Council.

The proposed works would not look out of place as there is already a change in levels to the west of unit 3, this would only make a natural progression.

The raised retaining wall on the canal side of the property would incorporate the palms, which are presently planted.

The planned levelling and landscaping of this area would enhance the property as a whole and not just those units. By allowing the owners of a unit to improve the area in front of their unit, value can be added to all properties not just the unit who carried out the work, and this is at no expense to other unit owners.

D. Costs. Any and all costs, for the construction registration and maintenance would be the responsibility of the owners of units 3 and 4.”

The above adequately sets out the scope of the project. In addition to the above, details are given in the dispute resolution application about the layout of the lots and common property:

“The layout of Tawarri Lodge is unusual in that there are two buildings, the western building, which contains lots 1, 2 and 5 and the eastern building which contains lots 3 and 4. Lots 1, 3 and 4 are 2 storey town houses and lots 2 and 5 are apartments, lot 2 being the ground floor, with lot 5 above. The western building is approximately 13 metres from the canal, and the eastern building, set forward on the block, is 4 metres from the canal. A level area in front of lots 1, 2 and 5, and alongside lot 3, extends out to a distance of approximately 3.6 meters before a gentle slope and level area again. (Photographs attached at fig 2) The area in front of units 3 and 4 is a steep slope falling approximately 1 in 5. (Photographs attached at Fig 4 & 5)”

An examination of the photographs and building units plan for this scheme confirms much of the above. I do note that the owner of lot 5, Audrey Craine, disagrees with the assertion of the applicants that there is a level area in front of lots 1, 2 and 5. It is relevantly stated in her submission, “I wish to point out that the common usage area in front of units 2 & 5 & townhouse 1, is by no means level, & has an even steeper slope down to the canal.”

The applicants have expanded on the reasons for seeking approval for the work in their dispute resolution application as follows:

“Reasons for requesting permission to complete works.

§

To allow the more effective use of the area without the possibility of injury or property damage. At present to use the sloping area, chairs are on difficult angles, and the BBQ, has to be levelled using blocks of wood. (Photograph attached at fig 1) In the present condition of the slope chairs have been broken, and users fallen to the grass. To use our BBQ under our covered patio has the potential to be a fire danger.

§

To respect the privacy of other residents by restricting our outdoor activities to the close vicinity of our unit. There is an unwritten understanding, the owners of each unit uses and maintains the area (common property) directly in front of their unit.

An alternative would be for us to use the flat area at the rear of our unit, if BBQing, the smell would penetrate all other units, and this is also the clothes line area. Another alternative would be to use the level area in front of units 1 & 2, (photographs enclosed at fig 2) as this is common area. Because of the previously mentioned the unwritten understanding, we consider, our activities in these areas would be an invasion of other resident’s privacy.”

It is necessary to obtain Body Corporate authority to perform the work pursuant to section 114 of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Regulation) which provides as follows:

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 24 —

(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.

The term “minor improvement” as mentioned in sub-section (2)(a) is defined in the Schedule Dictionary of the Regulation as follows:

“minor improvement” means an improvement with an installed value of

$200 or less.

The levelling work constitutes an improvement. The applicants indicate in the dispute resolution application that the material cost of the work will be approximately $350. Consequently, the work does not constitute a minor improvement. A special resolution is required to authorise the improvement.

The Body Corporate considered a motion to approve the work at its annual general meeting on 16 September 2000. Motion 15 relevantly provided:

“15. APPLICATION UNDER SECTION 114 OF STANDARD MODULE BCCM ACT 1997: (SPECIAL RESOLUTION) That Body Corporate approval be granted to the Owners of Units 3 and 4 to carry out works under Section 114 of the BCCM Act as specified in schedule marked with the letter “D”.

(Note: Notice has been received from the Owner of Unit 3 that she no longer wishes to be involved in the proposed works. This Motion as proposed should be voted Out of Order by the Chairperson at the meeting unless the Owner of Unit 4 wishes to make an amendment to the proposal without changing the Substance of the Motion.)

Vote: Yes 2 (Lots 1 & 4) No 3 (Lots 2, 3 & 5) MOTION LOST”

It will be observed that the owner of lot 3 indicated that “... she no longer wishes to be involved in the proposed works.”

The owner of lot 3, Julia Evans, has made a submission in response to the application. She relevantly states the following in her submission:

“I was approached by Mr Mills during 2000 to see if I would be interested in applying with him for exclusive rights to the common land area immediately in front of our units. I was not interested in this suggestion. Mr Mills then further approached me to apply jointly to level the area adjacent to our units.

I could not see the reasoning or need for this request as the land is quite acceptable for usage and drainage and the natural fall is quite pleasant and an attractive flowing aspect down to the canal. And for seventeen odd years the complex has been in place it seems to have worked quite well as it is.

The subject of levelling was brought up on many occasions by Mr Mills to myself, saying how it would increase the value of my property should I wish to sell etc. I have to say I was starting to feel a little pressure and because they were my neighbours a certain obligation to oblige them.

At around this stage Mrs Mills made the comment that they would be applying anyway and if they were knocked back by the committee they would take it to the Adjudicator.

Without the levelling of the total area outside both units the situation would be quite horrific from a drainage point of view and would look most unattractive from my side. So I approached Mr Mills and explained with certain understandings I would sign his application. The understandings we agreed to which would have been about June of last year were a. if the motion were passed at the AGM no work would commence until I was financially able to proceed. And b. that if the motion was not passed at the AGM then the decision would be accepted and NO further action would be taken.

Some months later when this motion was due to be presented at the AGM I personally felt very uneasy about the whole situation and withdrew my signature from the joint application.

Sir, I have stated the facts as they occurred, and I would like to add that all units have always just used the common area outside their patio areas, some are a little more level than others. My area of common land is on a steeper fall than my neighbours Mr & Mrs Mills, yet I manage my bar-b-que quite successfully and no one has managed to break or fall of their chairs.

Should the natural fall of the land be disturbed it could be quite detrimental to the drainage onto surrounding areas and in my opinion it is all quite lovely just as it is.”

It is apparent from the above that Ms Evans was not enthusiastic about the levelling work. She seems to have initially gone along with it to keep good relations with the applicants. Additionally, she did not want levelling work to the north of lot 4 without similar work to the north of lot 3. She considered that if the only work done was to level the common property in front of lot 4, it could create drainage problems and would be unattractive.

I will examine two other submissions that have been received.

A co-owner of lot 2, Roland Muster, thinks that the matter should be considered more generally. He relevantly states, “I believe that in the interest of all owners the committee should look at the whole picture and, maybe appoint a qualified person – or firm to plan for an upgrade (redesign) for the common property bordering our canal front. By doing that, no owner would be disadvantaged, and a higgeldy- piggeldy development could be forstalled. Of course any changes to the layout of said common property could be done in stages.”

A submission was also received from the owner of lot 5, Ms Audrey Craine. I have briefly referred to it above. Ms Craine expresses concern about adequate drainage. As stated above, Ms Craine indicates that the area to the north of units 1, 2 and 5 has a slope. She relevantly states, “It is also difficult for us to place chairs/tables etc in a comfortable position. I have lived here & own my unit for 11 years now & we have managed. So if any levelling is to be done it should apply for all of us, & done in the future when our Body Corp. funds can afford to do so – with quotes being given & put through the proper process.”

I will now give my assessment of the application.

The Body Corporate must administer, manage and control the common property reasonably and for the benefit of all owners: sections 87 and 114 of the Act. The applicants are entitled to succeed if they can show the refusal of the Body Corporate to authorise the work is unreasonable.

There is a conflict in evidence about whether there are level areas in front of lots 1, 2 and 5. Even if there is a continuous slope, that would not affect the outcome of this application. If one owner or group of owners is satisfied with sloping land, that does not mean that the applicants have to accept sloping land in front of their lot.

I would not dismiss the application on the basis of concern about drainage. In my view, that issue can be addressed by imposing a condition on the authority to perform the work. For example, a condition could be imposed that the applicants obtain an engineering report on appropriate drainage and act in pursuance of that report.

In my view, the applicants made a strong case for obtaining Body Corporate authority. The land to be improved will be more usable and they will pay the cost of the improvement.

However, I have also taken into account the submission of Ms Evans. Ms Evans is satisfied with the current state of the common property in front of lot 3. She describes the land as being “quite pleasant and an attractive flowing aspect down to the canal.” and “quite lovely just as it is.”

In my view, it would not be proper to allow the common property in front of lot 4 to be levelled with the land in front of lot 3 being on a slope. I think the appearance would be unattractive and irregular. I also would not allow the applicants to level all of the common property to the north of lots 3 and 4 given the views of Ms Evans and other owners.

In these circumstances, I have decided to dismiss the application.

I do want to state to the applicants that it appears to me from reading the submissions that owners are not completely opposed to the proposal. However, they do have some concerns and in some cases would rather the problem be generally addressed for common property in front of all lots. The applicants can consider whether they wish to negotiate with the other owners about the matter.