Auchen Towers [2001] QBCCMCmr 379 (13 July 2001)

RA MeekREFERENCE: 0205-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14389
Name of Scheme:	Auchen Towers
Address of Scheme:	364 Milton Road Toowong QLD 4066

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

Margaret (Peggy) Rush, the owner of lot 6

RA MeekI hereby order that the application by Margaret (Peggy) Rush, the owner of lot 6, for an order that Mr Greer be directed to cease construction of his current proposed awning and to be directed to replace new awning in a style and structure and size as was originally there, is dismissed.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0205-2001

“Auchen Towers” CTS 14389

The applicant, Margaret (Peggy) Rush, the owner of lot 6, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That Mr Greer be directed to cease construction of his current proposed awning and to be directed to replace new awning in a style and structure and size as was originally there. Mr Greer did not seek my permission to have the anchorage and bots for the “Sail” attached to my balcony . I wish to have them removed forthwith.

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)).

In the supporting grounds, the applicant states that that the awning structure constructed by the owner of lot 3, Robert William Greer (the respondent) “2 triangular shaped sails was NOT the original approved proposal dated 31/9/1998. The approved proposal consisted of 1 full-length aluminium awning”.

The applicant states –

This new erection is contrary to what was originally approved, so therefore needs to be presented to the body corporate again and the body corporate to be instructed by you to put it before a meeting. ... the sails are aesthetically and visually impeding my comfort. These sails require my balcony to hold it up while previously it was given approval because it would stay wholly in his lot. Mr Greer now needs body corporate approval as he is impinging on my lot. As well I request he remove his bolts and anchorage from my lot.

I have considered the applicant’s further material, but do not intend to restate it here.

I do not agree that the respondent should be directed back to the body corporate in general meeting for approval. The applicant had already obtained the relevant approval for construction of the awning in compliance with the legislation. As for the variation in the design of the awning, I am satisfied that this matter was raised by the respondent with the committee prior to the construction of the sails. The committee appear to have not resolved specifically regarding the amended design, but rather, to have concluded that –

A previous ruling has been received by the committee from the commissioner regarding this matter, indicating it is within the BCCM act 1997 guidelines. As a result the committee needs to be guided by this ruling.

This is not a resolution as such, but I accept that it implies that the committee approved the amended design. More relevantly, I conclude that the amended design was bought to the attention of the committee by the respondent, and that the respondent did not simply proceeded to erect something other that the design originally approved.

There is however another aspect to the application. The applicant complains that the anchorage and bolts for the “Sail” have been attached to her balcony and that she wishes to have them removed. The applicant states “Sail” and its seems that the applicant is only referring to one of the respondents’ sails. The inner smaller sail is affixed under the balcony, and is within the terms of the reasoning of the adjudicator in order 0183-1998. That is, it is totally within the applicant’s lot, and given the absence of a by-law relating to external appearance, did not in fact require body corporate approval.

Therefore the only sail the applicant could be referring to is the second, larger sail. I note that this sail has been anchored by way of a steel plate which has been affixed to the balcony slab separating lots 3 and 6. The applicant claims that this is her balcony. In the sense that a balcony is constructed above the slab, this is correct. However, The balcony slab is in fact the boundary of the two lots, and the boundary line as defined in the legislation is the centre of the floor, wall or ceiling. In this case, the boundary of the two lots is the vertical centre point of the slab. Having said this, I cannot deny that the steel plate anchoring the sail does appear to impinge on the applicant’s upper half of the balcony slab to a limited extent. However, I am simply not prepared to accept that this causes any detriment to the applicant in her use or enjoyment of the balcony.

I consider that the applicant’s objection to the awnings, and what has in fact been erected, is a long standing one as evidenced by her previous application, and that the applicant is simply not being objective regarding this matter. I intend to dismiss this application.



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