Aqua D'or [2001] QBCCMCmr 22 (16 January 2001)

C G YOUNGREFERENCE: 0575-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10064
Name of Scheme:	Aqua D'or
Address of Scheme:	17/21 Duet Drive MERMAID WATERS QLD 4218

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

Patricia Lorraine MORAN, as the owner of Lot 14,



C G YOUNGI hereby order that the committee must include a motion, to be decided by ordinary resolution, in the agenda of the forthcoming general meeting of the body corporate for owners to determine whether they authorise the owner of Lot 14, Patricia Moran, to retain the chair, pot plants and ornamental objects presently placed on areas of common property adjacent to her lot, or whether they disapprove of the presence of the items and require they be removed. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0575-2000

“Aqua D'or” CTS 10064

The applicant, Patricia Moran of Lot 14, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

To retain planter boxes – ornamental objects, chair at my front entrance. On the basis that the change is minor and does not detract from the amenity of the lot and its surrounds.

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 has attached a copy of a “Notice of Continuing Contravention of a Body Corporate By-law” dated 26 September 2000, issued against her in respect of By-law 8 - “Appearance of Lot”. The notice refers to “Chair on common property, potted plants on window sill and ornamental objects adorning exterior of building.” and alleges that the presence of the items is in breach of this by-law.

The wording of the by-law set out in the notice is By-law 8 of Schedule 2 to the Act. However from my investigation of the scheme’s registration held by the Registrar of Titles, this is not a by-law of the body corporate.

“Aqua D’Or” was registered as a building unit plan on 25 August 1982 when its by-laws would have automatically been those imposed by the Third Schedule to the then governing legislation, the Building Units and Group Titles Act 1980 (hereafter “the BUGT Act”). This by-law was in force at the time the new Act commenced on 13 July 1997 and under the transitional provisions of the Act, it and the other by-laws of the body corporate were preserved as the by-laws of the body corporate. Accordingly, By-law 8 of Schedule 2 to the present Act is not the body corporate by-law dealing with the appearance of the building. The relevant by-law reads as follows –

Appearance of Building.

In the case of a building units plan, a proprietor 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, advertise, placard, banner, pamphlet or like matter on any part of his lot in such a way as to be visible from outside the building.

The most significant difference between this by-law and By-law 8 under the present Act, is that the new by-law includes the prohibition that no alteration can be made to the external appearance of a lot unless it is minor and does not detract from the amenity of the lot and its surrounds.

However, the by-law is of no consequence in resolving this application as the “changes in appearance” which the committee has objected to, have not been changes made to the lot itself (which the by-law is solely concerned with) but involves the placing of items on common property near the lot. I have only dealt with the by-law issue because there is a misunderstanding in the applicable by-law.

The law concerning use of the common property by an owner, is contained in section 114 of the regulations to the Act, the Body Corporate and Community Management (Standard Module) Regulation 1997 (hereafter “the Standard Module”) -

ú

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.

2nThat is, if an owner wishes to make an improvement to their lot which involves a use of common property (by placing something on a common property wall or lawn, or projecting into common property air-space) then they need to comply with this section. I note in changes to the by-laws recorded by the Registrar on 20 August 1982 and on 2 March 1982, owners of Lots 7 to 25 have the benefit of exclusive use over certain parts of the common property adjacent to their respective lots. However, as I have said, it is inconsequential if the areas of common property on which the applicant Moran has placed the items (chair, pots, ornamental objects) are part of her exclusive use area or not.

It seems to me that the items fall into the category of a “minor improvement” within the meaning of section 114(2)(a) (see Dictionary Schedule) and therefore the committee has a discretion to approve each improvement/use. It has chosen not to exercise that discretion but to instead require the applicant remove the items.

In exercising this discretion, or choosing not to exercise it, the committee must act reasonably (see section 87(1)(b) and (2) of the Act). I have viewed photographs of the items submitted by the applicant and while there is a great number of pots on the rear deck facing the canal, the items do not appear to me to offend against the conditions set out in section 114(2)(b) and (c).

The applicant has submitted a document containing the signatures of the owners of 8 lots and tenants of 9 other lots, supporting her contention that the items are neither unsightly nor offensive. Of course tenants have no intrinsic voting rights but the relevant owners may reflect the view of their tenant in any decision they have to make in the matter.

The body corporate in general meeting is of course the scheme’s paramount body and it may overturn decisions of the committee on any matter. I understand that there is a general meeting to be held shortly and that the notice of meeting containing the agenda has not yet been issued. It seems timely and appropriate that the owners be asked to make a decision on the continued presence of the items on common property. This will not only decide the instant matter but also provide the committee with a general guide as to the views of owners, thereby making the committee’s task in deciding such matters in the future an easier one. Committee members often have a difficult and thankless task, no more so than in having to decide on and enforce by-laws.

My order is therefore that the committee submit the matter to the forthcoming general meeting for a decision by owners as to whether they approve or disapprove of the items placed on common property, and if the latter prevails, that they be removed.