Mataranka Court [2001] QBCCMCmr 69 (9 February 2001)

P J HANLYREFERENCE: 0603-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7554
Name of Scheme:	Mataranka Court
Address of Scheme:	2 Dorrigo Drive WORONGARY QLD 4213

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

Colleen Andrea Sly, the owner of lot 2



I hereby order that the owner or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate.

I further order that the owners of lot 1 shall, within 1 month of the date of this order, place small stones in the space between the new concrete block retaining wall and the original timber retaining wall at the rear of lots 1 and 2 in order to provide support for the soil at the rear of lot 2.

I further order that the body corporate shall effect insurance of the common property and body corporate assets and of the building in accordance with sections 127 and 128 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

I further order that the application for an order in respect of the air conditioner at the rear of lot 1 and the pergola at the rear of lot 1, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0603-2000

“Mataranka Court” CTS 7554

The applicant Colleen Andrea Sly, the owner of lot 2, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), in respect of:-

•	Parking
•	Painting
•	Retaining walls
•	Pergola
•	Air conditioner
•	Insurance

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)).

The applicant is concerned that the owners of lot 1 carried out certain work (the pergola and the air conditioner) without any consultation. The applicant is also concerned that the retaining wall at the rear of lot 1 does not provide adequate support to her property, as the soil and concrete on her side is moving. The applicant is also concerned that the owners of lot 1 may paint the front of the building on their side in a different colour to the front of the building on her side. The applicant is also concerned that the owners of lot 1 are parking diagonally across the visitor’s car park. Finally, the applicant wishes to have the building insurance resolved.

The owners of lot 1 were invited to respond to the application. They state that they were unaware that they were parking in a visitor’s car park. They further state that they did not consult with the applicant about the painting because of previous conflict, and that they chose a colour for the guttering at the rear of the property, which they thought, would blend with the colour of the property generally. They further state that termites extensively affected the original retaining walls, and they have replaced them with concrete and rock retaining walls. They acknowledge that they constructed the pergola without reference to the applicant, but state that it is similar to the pergola constructed at the rear of the applicant’s lot, and has been built in accordance with good building practice. They agree that the building insurance should be resolved. They state that they tried to discuss the insurance with the applicant when they bought their lot, but she refused to speak with them. They state that the compressor on the air conditioner installed at the rear of their lot was blanketed at the time of installation to minimise noise.

The applicant responded to the submission, and expanded on her grounds for making the application.

I visited the scheme on 5 February 2001.

I note the respondents’ comment that when they purchased the property they had been informed by their legal advisor that no body corporate existed for this property. This is not correct, as a body corporate is created when the community titles scheme is established, and the members of the body corporate are the owners of all lots included in the scheme (sections 31 and 32 of the Act). I further note that the scheme registered on 19 March 1987 and the by-laws applicable to the scheme are those contained in Schedule 3 of the previous Act, the Building Units and Group Titles Act 1980.

By-law 2 provides that an owner or occupier shall not stand any motor or other vehicle on the common property except with the consent in writing of the body corporate. There is no part of the common property which has been allocated to visitor parking, or any other parking. Accordingly, no owner or occupier is permitted to park on any part of the common property. This includes the driveways to each lot and the concrete apron outside of lot 1, which appears to have been mistaken for a visitor parking space. I believe the concrete apron has been constructed to allow vehicles exiting from the garages to reverse on to it, and then drive out of the property nose first. I have made an appropriate order in relation to parking.

Both owners should be aware that the outside walls of the building are common property, as the boundary of each lot is the centre of floors, walls and ceilings. It is the responsibility of the body corporate to maintain common property in good condition. In the event that painting is required, it is a matter about which both owners must agree. It would seem that no meetings have been held for this scheme for some time, if at all. I note that the owners of lot 1 have sold their lot, and that settlement is expected to take place in 3 weeks. I suggest that the applicant and the new owners of lot 1 take steps to have the day-to-day administration of the body corporate placed on a proper legal footing. It may be worth their while to approach a body corporate manager to assist them in this regard.

The two retaining walls to which the applicant refers are both on common property. The wall at the rear of lot 1 has been constructed of concrete besser blocks on top of a concrete slab reinforced with steel. I was advised by Mrs Gidall during the course of the inspection that her husband intends to fill the space between the blocks and the previous timber retaining wall (which I observed to have been severely damaged by termite infestation) with small stones to provide support for the raised section of ground at the rear of the applicant’s lot and also to allow for proper drainage through that section of the property.

On 8 February 2001 I telephoned Mr John Smith, a building inspector with the Gold Coast City Council. Mr Smith informed me that he had inspected the retaining walls in question, but that neither of them had required Council approval as they did not exceed 1 metre in height. On that basis, therefore, Mr Smith stated that the walls did not fall within his jurisdiction. Mr Smith further stated that he considered the retaining walls to fall within the definition of landscaping, and that as far as he could ascertain they seemed to be adequate for the purpose for which they were intended.

I was unable to detect that the soil at the rear of the applicant’s lot had moved as she has alleged, although I did note that the large concrete paver to the left of her rear door and immediately adjacent to the dividing fence, was tilting away from the door. I also have not been provided with any expert reports to confirm soil movement, but common sense dictates that if the soil is not properly supported it will move. It is my view that the besser block retaining wall which has been constructed by the owners of lot 1 is adequate for the purpose for which it is intended, provided that the space between the blocks and the original timber retaining wall is filled with stones as I was advised by Mrs Gidall was to be done. I have ordered accordingly. I have made no order in relation to the rock retaining wall at the front of the building adjacent to lot 1’s garage, as I consider that it is adequate. I also consider that the rocks are a suitable choice for the location, and do not detract from the appearance of the scheme.

I noted that an air-conditioning unit has been installed in the rear wall of lot 1. The owners of lot 1 do not deny that they did not seek the applicant’s consent to this installation. I requested that it be turned on, so that I could hear the level of noise which it emits whilst operating. I was not satisfied that the noise level was unreasonable.

I am required to make an order that is just and equitable in the circumstances. The by-laws of the scheme provide that an owner shall not drive nails or screws or the like into common property without the consent of the body corporate. However, after my discussion with the parties, I formed the view that communication between them had broken down irretrievably, and that it is unlikely that agreement would be able to be reached on anything. The applicant also told me that she might wish to put in an air-conditioning unit in the future. I therefore do not propose to order that the air-conditioning unit installed at the rear of lot 1 be removed, as I do not consider that it is causing any detriment. Furthermore, it can barely be seen from lot 2, and cannot be seen at all from the front of the building. In addition, if the applicant wishes to install air-conditioning in the future, then the precedent for her to do so will already exist.

I also do not propose to make an order concerning the pergola constructed at the rear of lot 1. Firstly, there is a pergola constructed at the rear of lot 2, and it would appear that neither structure has ever received body corporate consent. Secondly, the pergola at the rear of lot 1, although slightly larger than the pergola at the rear of lot 2, is of solid construction, and enhances the amenity of the lot, without detracting from the appearance of the scheme. I formed a similar view of the pergola at the rear of lot 2. It seems to me that both owners have made an acceptable alteration to provide a suitable outdoor entertaining area, and that it is just and equitable that both pergolas be allowed to remain in situ. I do note, however, that an exclusive use by-law has not been made in relation to the two areas, which are enclosed at the rear of each lot. This is a matter which the applicant and the new owners should address in the course of placing the body corporate on a proper footing.

The final issue relates to insurance. As this is a building format plan of subdivision, the body corporate is obliged to effect insurance of the whole building, the common property and body corporate assets, in accordance with sections 127 and 128 of the Standard Module. I note that the applicant has been insured with RACQ/GIO for some years and would like the insurance to be effected with that company so that the body corporate may derive the benefit of a discount. The owners should decide where they would receive the best deal on insurance, and then take the necessary steps to put the cover in place. Once again, this is a matter about which an experienced body corporate manager may assist them. 2n