Mountainview [2001] QBCCMCmr 89 (15 February 2001)

P G DanielsREFERENCE: 0568-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20989
Name of Scheme:	Mountainview
Address of Scheme:	Meadowlake Drive CARRARA QLD 4211

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

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

That the owner of Lot 47 be required within 30 days to attend to the tiling of the pergola and BBQ roof on their lot in accordance with the By-Laws.

That the lot owner comply the By-Laws in regard to the set-back from the boundary line of the BBQ shelter.

is dismissed.1n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0568-2000

“Mountainview” CTS 20989

The applicant, the Body Corporate for Mountainview, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act):

That the owner of Lot 47 be required within 30 days to attend to the tiling of the pergola and BBQ roof on their lot in accordance with the By-Laws.

That the lot owner comply the By-Laws in regard to the set-back from the boundary line of the BBQ shelter.

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 two structures on lot 47, namely a pergola and a BBQ shelter, which the applicant Body Corporate contends do not comply with the By-laws.

The owner of lot 47, Jane Willis, has made a submission in response to the application through Allan Dick Solicitors (the respondent’s submission). It is indicated in the submission that the pergola and the BBQ shelter were constructed in October 1997.

Metal Roofs

The two structures have metal roofs. The applicant argues this is a breach of by-law 13(9)(f) which provides as follows:

“(f) Materials for visually exposed roofing must be either concrete or terra cotta tiles and must be terra cotta orange in colour. The profile of the roof must be either Elbana, Swiss or Turin as defined by Monier, or otherwise as approved by the Committee.”

The above by-law only applies to “visually exposed roofing”. There are a number of buildings on scheme land that have metal roofs but they cannot be seen as they are hidden behind parapets. Consequently, the presence of those roofs would not contravene the above by-law.

The metal roofs on lot 47 are visually exposed. They can be seen from an adjoining golf course and an approach road.

It is argued in the respondent’s submission that the above by-law is intended to cover houses and not BBQ shelters. I respectfully disagree. There is no indication in the by-law that it is limited only to houses.

The metal roofing on the pergola and BBQ shelter contravene by-law 13(9)(f).

Set back requirements

The roof of the BBQ shelter extends to the boundary of lot 46. It is argued that this is a contravention of set back requirements. Those requirements are provided by the by-laws 13(5) and (6) which state as follows:

“(5) Side Boundary Building Line Controls

The side building line shall be measured from the outermost projection of the building to the side boundary of the allotment and shall not be less than:-

(a)	where the height of the building is not greater than 4.5 metres – 1.5 metres;

(b)	where the height of the building is greater than or equal to 4.5 metres but is not greater than 7.5 metres – 2 metres;

(c)	where the height of the building is greater than or equal to 7.5 metres but is not greater than 10 metres – 2.5 metres;

(d)	where the height of the building is greater than 10 metres – 2.5 metres plus 0.5 metres for each 3 metres or part thereof the height of the building exceeds 10 metres.

(6) Rear Boundary Building Line Controls

(a)	The minimum allowable rear building line for any building shall be 3.0 metres from the outer most projection of the building so the rear boundary of the allotment, but in no case may it extend beyond the top of the batter nor beyond the minimum reclamation level set by the local authority.

(b)	The provisions of clause 13(6)(a) do not apply to trellises, shading devices or other structures which are merely ornamental or used for horticultural purposes.

(c)	The Committee may alter the minimum allowable rear boundary lines where the levels or the depth of the lot or exceptional conditions including without limitation the shape of the site, make it necessary or expedient to do so.”

I conducted a teleconference with Allan Dick, solicitor for the respondent and Craig Brennan, Graham Grimsey and Maurice Verna of the Body Corporate on 25 January 2001. It is only alleged that there is a contravention of by-law 13(5) in respect of the BBQ shelter. I find that such a contravention is occurring.

It is argued in the respondent’s submission that by-law 13(6)(b) applies. Even if that is the case, it does not alter the fact that there is a contravention of by-law 13(5). It should be noted that the exceptions provided by by-law 13(6)(b) do not apply to by-law 13(5).

Enforcement of by-laws

A primary obligation of a Body Corporate is to enforce the by-laws reasonably: section 87 of the Act.

It would be unreasonable if a Body Corporate enforced the by-laws against one owner and yet allowed another owner(s) to contravene the by-laws without taking action.

It is argued in the respondent’s submission that there is discrimination in the enforcement of the by-laws.

The respondent had originally agreed to tile the pergola and BBQ shelter roofs. However, the respondent subsequently changed her mind. The reason is given in facsimile from the respondent to Craig Brennan dated 6 February 2000 which states as follows:

“Further to our earlier correspondence we wish to advise that it is not in our interest to make changes to roof tops in our garden unless others in the estate with a similar situation are changing their roofing.

This matter has been raised with you before and as they have not made changes to their property, we will wait.”

The following is stated in the respondent’s submission:

“In respect of the allegation regarding undertakings to tile the pergola and barbecue roofs on the 13^th of November 1999, our clients wrote on the 6^th of February, confirming that, they considered various other premises in the subdivision had similar or identical roofing and until such time as there was a requirement for the other roofing construction to be removed, our clients considered that they would be being discriminated against in having to tile the roofs rather than, utilize the roofing that is in place. They had agreed to tile until they determined there were other premises using tin roofing which had not been the subject of any action by the Body Corporate.”

As mentioned above, there are a number of houses with hidden metal roofs. Consequently, they do not contravene the by-laws and cannot be taken into account when considering the issue of discrimination.

During my teleconference discussed above, I asked Mr Dick to arrange with the respondent to send in any photographs showing other structures on scheme land with metal roofs. I have subsequently received some photographs. There are two lots involved. In respect of lot 35, the structure is described as a metal roofed lean-to pergola from the house on lot 35 to the wall/fence on the boundary. The photographs do not give a good impression of the second structure. Based on a letter from W.N. Webb & Associates Pty Ltd, Architects (discussed below) there are two lean-to structures with timber battens and shade cloth roofs on lot 23.

The Body Corporate sought advice from W.N. Webb & Associates Pty Ltd, Associates about a number of structures on scheme land and compliance with the by-laws. Webb & Associates gave the following advice dated 28 January 2000 on the lean-to shelters on lot 23:

“2. Lot 23 - We have no record of Applications being made to the Architectural Review Committee for these 2 Lean To structures.

The roof structures are not impervious, but timber battens and shade cloth, and are therefore considered to be shade devices.

Under the By-laws there are no provisions for setback exclusions for shade devices to side boundaries as there are under Rear Boundary Building Line Controls.

The construction materials and finish generally comply with part (9), Building Material and Colour Control.

Part 10, General Code, subclause (e) provides for ‘screened enclosure of existing amenity areas’, and its intent would seem appropriate for consideration of those structures currently in question.

If this is to be the criteria here, we would consider that the existing structures comply, as they do ‘not unreasonably interfere with the amenity of adjacent lots’.

I note that the Architects were not asked to advise on the respondent’s structures nor the lean-to structure on lot 35 even though the respondent (and Geoff Burke) had indicated the presence of the structure in a letter to the Body Corporate dated 14 August 1999.

In my view the lean-to shelters also contravene the set back and roofing by-laws (referred to above). I have taken into account by-law 13(10)(e) which provides as follows:

“(e) Screened enclosure of exterior amenity areas, including without limitation pools and courtyards, is permitted however such enclosures must not unreasonably interfere with the amenity of adjacent lots and must comply with the building line controls for street alignment (by-law 13(4)); side boundary (by-law 13(5)) and rear boundary (by-law 13(6)).

By-law 13(10)(e) is subject to two requirements; 1. the screening structures must not unreasonably interfere with the amenity of adjacent lots; 2. compliance with the set-back by-laws.

In my view the right to erect screening does not extend to roofing. Consequently, the roofing by-law 13(9)(f) would apply in those circumstances.

Even if by-law 13(10)(e) applied to this case, the contraventions of the by-laws referred to above are still occurring.

In these circumstances, it is my view that it is unreasonable for the Body Corporate to enforce the by-laws against the respondent without also taking action in respect of the lean-to shelters.

I do want to make it expressly clear that this does not preclude the Body Corporate from taking appropriate action in the future. The Body Corporate could consider amending the By-laws to address the issues raised in this application and then take appropriate action in respect of offending structures. Alternatively, the current by-laws will have to be enforced consistently by requiring all owners who are contravening by-laws 13(5) and 13(9)(f) to remove or alter the structures to make them complying structures.

It is argued in the respondent’s submission that as the pergola and BBQ shelter are aesthetically pleasing structures and well constructed, they should be allowed to remain. That would not be a basis to allow the structures to remain. It would render a prescriptive by-law unenforceable.

I dismiss the application.