Campari [2001] QBCCMCmr 268 (17 May 2001)

C G YOUNGREFERENCE: 0169-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5636
Name of Scheme:	Campari
Address of Scheme:	45 Galloway Drive ASHMORE QLD 4214

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

Karen Sue Hutchison, the owner of Lot 7,



C G YOUNGI hereby order that the application for an order to overturn the decision of the body corporate made at its annual general meeting on 3 March 2001 not to authorise the proposal of Karen Hutchinson to carry out certain groundworks to the area of common property at the rear of Lot 7, is dismissed. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0169-2001

“Campari” CTS 5636

The applicant, Karen Hutchison of Lot 7, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“That the decision on special resolution Motion 9 of Annual General Meeting 3/3/01 be overturned, and the owner of Lot 7 be granted permission to carry out the requested groundworks:

1.	Construct a retaining wall (as per diagram).
2.	Remove & replant all foliage as indicated.
3.	Install concrete (or paving) area and path (as indicated).”

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)).

I have recently dealt with an application by another owner, Lia Da Silva of Lot 5 (see Order 78-2001 of 11 May 2001), who is similarly experiencing a drainage problem on an area of common property adjacent to the rear of her lot building. Like Da Silva, the applicant Hutchison has the exclusive use of the relevant common property area, granted her as the owner of Lot 7 under By-law 18 recorded by the Registrar of Titles on the registered plan for “Campari” on 17 January 1990.

In the case of Da Silva I issued an order allowing her to carry out certain work to the common property area in consideration that most of it was in the nature of necessary remedial work to rectify a drainage problem. What portion of the work that was not in this nature, and was therefore an improvement, was in my opinion a “minor improvement” within the scope of section 124 of the Standard Module.

I have not issued a similarly favourable order for the applicant Hutchison for the following two reasons which I shall address in turn.

The groundworks proposed by Hutchison are set out in the grounds to her application and in Motion 9 put to the annual general meeting on 3 March 2001. The proposal comprises the erection of a treated pine log retaining wall some 15 metres in length and “under a metre” high, sited some 4 metres out from the north-eastern external wall of her lot. Also, although the width is not specified in the diagram, either a concrete or paver-brick path is to be laid on the ground immediately adjacent to the building wall. The height of the path is also not specified. The remaining area between the path and the retaining wall is to be filled with earth such that the area is level, following which the area will be planted with grass.

Again the depth which the dirt is to be filled to is not evident from the material before me. However I note in one of the many letters submitted by the applicant, namely one addressed to the previous Body Corporate Manager, Mr Tom Harrison, and dated 4 January 2001, the applicant in reference to the groundworks says, “the deck at the rear of my unit is under construction”. She again refers to it as a “deck” in a later letter dated 10 January. While the proposed work may not be properly categorized as a “deck”, it does, in my opinion, describe a structure that is something more than one solely to overcome a drainage problem - a structure that is also an amenity to the lot as well as rectifying a problem. Rectification to allow the occupiers to use the area when rainwater was evident could be achieved by a simple path over the areas commonly used.

I agree with the decision of Harrison that the proposed structure was an improvement and therefore, under section 124 of the Standard Module, required the approval of the body corporate in general meeting by special resolution. This is in contrast to Da Silva where the works proposed were relatively minor and wholly remedial.

As an adjudicator I do have the power to overturn the refusal of the body corporate (constituted by three votes being cast against the applicant’s motion) and so authorise the proposal, but this can only be done where the refusal is unreasonable, discriminatory or there is some other good and proper reason. I must say that my decision was not one that came quickly as there are points in favour of the proposal – mainly that it is really an extension of a necessary work to remedy a drainage problem (that is, some works must be done) and secondly that it is not going to be a visible structure to other occupiers in the ordinary use of their lots and the common property, nor detract from the overall appearance of the scheme.

The second reason for my order rests on the objections of the applicant’s neighbour, Elaine Croft of Lot 6, and the failure of the applicant to address the issues she has raised. Unfortunately the applicant did not avail herself of the opportunity to read her submission to the application and make a reply in rebuttal to that submission (as advised in our general letter to applicants).

Croft is one of those persons who voted against the proposal and she retains a strong objection to it. She is concerned that the construction of the “deck” will cause drainage problems to other areas of the scheme, including her own, and that the build-up of earth against her fence will cause it to rot. She also discloses that there is an easement for a Gold Coast City Council water main which cannot be built over or the ground level altered. Additionally, she states that the sewerage line runs over the relevant area and the works may create an access problem in the event of a leak. She maintains that all that is necessary is for the applicant to lay down a path of (removable) paving bricks, the garden bed to be restored and fast growing trees planted to provide privacy from Ashmore Road.

In the present circumstances I am not prepared to overturn the body corporate refusal. Perhaps the applicant should reconsider her proposal, discuss it with those owners who voted against the present proposal, and in the process addressing the issues raised by Croft.