L'Colonial Court [2002] QBCCMCmr 113 (27 February 2002)

RA MeekREFERENCE: 0608-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9169
Name of Scheme:	L'Colonial Court
Address of Scheme:	4 Murlong Crescent Palm Beach QLD 4221

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

Denis Maurice Degiovanni, the co-owner of lot 3



RA MeekI hereby order that the application by Denis Maurice Degiovanni, for an order that the body corporate agree to the installation of a clothes line, is approved.

I further order that the motion to install a clothesline on common property, considered by the body corporate at the AGM held on 11 September 2001, is deemed to have been approved.

I further order that the committee of the body corporate is hereby authorised to implement the proposal to install a clothes line on common property, for the benefit of all owners and occupiers, and at body corporate expense.

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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0608-2001

“L'Colonial Court” CTS 9169

The applicant, Denis Maurice Degiovanni, the co-owner of lot 3, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the body corporate agree to the installation of a clothes line.

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 –

At the last three AGM’s we have applied for a clothes line (fold down style) to be installed on common land at the rear western corner of the lot. This area is currently overrun with rushes and used as a storage for unused roof tiles. A clothes drying area will tidy up this area and will not be detracting to the lot. At the AGM held on 11^th September 2001 when this issue was again discussed the four residential owners were in favour of the installation but the one non-resident owner of the other five units voted against. We feel that it is unfair that one non-resident owner can continually override the four resident owners. We ask for a resolution of this issue.

The minutes of the AGM held on 11 September 2001 record that –

Motion moved by Mr D Degiovanni that a collapsible clothes line be installed on rear wall of building. Resolved by body corporate after discussion that permission not be granted.

I have the benefit of submissions from all owners in the scheme. One owner, Elsie Jennie Phelps, the owner of lots (1, 4, 6, 7 and 8) (Phelps) is opposed to the proposal of the applicant. The three remaining owners, excluding the applicant, are in favour of the proposal.

Section 114 of the Act provides that the body corporate must administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners. Specifically, improvements to common property by the body corporate are dealt with in section 113 of the standard module. That section provides –

ÿ
Improvements to common property by body corporate—Act, s 121
113. The body corporate may make improvements to the common property if—
(a) the cost of the improvements, or, if the improvements together with associated improvements form a single project for improvement of the common property, the cost of the entire project, is not more than an amount worked out by multiplying the number of lots included in the scheme by $250; or
(b) the improvements are authorised by special resolution;23 or
(c) an adjudicator, under an order made under the dispute resolution provisions, decides the improvements are reasonably necessary for the health, safety or security of persons who use the common property and authorises the improvements.

Phelps has made a substantial submission in response to the application. At the outset, Phelps seeks to clarify a number of technical matters, including that the applicant is not the sole owner of the lot, and that the matter was raised by him under general business at the meeting. This office accepts the right a one co-owner to make an application. The second allegation is more serious. The legislation provides that motions must be included on the agenda of meetings in order to be valid. However, in the specific circumstances of this application, I am prepared to overlook this quite significant discrepancy. I consider the circumstances warranting this decision include that –

• The body corporate is self managed, and does not appear to have the benefit of technical advice from a body corporate manager;

• The minutes record that all owners were present at the meeting, albeit one by proxy, so I am satisfied that no owner failed to have notice or input into the decision.

Phelps then goes to lengths to negate an inference that her non-resident status will somehow influence the outcome of the application. It will not. As an owner, Phelps has an equal entitlement to have input into all decisions made by the body corporate affecting common property. However, I will say that the fact Phelps is the owner of 5 of the 9 lots, does not influence me in her favour. I intend to determine this application on the basis of the test set out in section 114 of the Act; namely whether the decision of the body corporate was reasonable and for the benefit of owners.

It is clear that all owners excepting Phelps support the proposal wholeheartedly. All have made submissions expressing clear support for the application. Comments include –
Cindy Barker (lot 2)

• We persist ... as it is important for us as residents to have the facility (the clothesline);

• We have a strong preference for drying our laundry in the fresh air and sunshine ... ;

• The common area behind the building is presently being used only for storage of spare roof tiles & bricks ... ;

• Visually the clothesline is not a problem ... ;

• On the three occasions we have introduced the subject, Mrs Phelps has been totally

opposed ...;

• I do not feel our request ... is unreasonable, as residents of the building it would make a difference to our everyday living ...

Patricia Shaw (lot 9)

• I personally have no objection to a clothes line being installed at the rear western corner of the lot;

• I voted in favour of the clothesline at the AGM as did three of the other four owners. Only one owner voted against ...(referring to Phelps and her majority vote);

Michael & Patricia Ives (lot 5)

•

We wish to support Mr Degiovanni’s application for the erection of a clothesline. We are one of the four owners that have been overruled by the single owners of 5 allotments by virtue of her superior voting power. I see no logical reason why a clothesline should not be installed for the benefit of all owners.

With this level of support (no owner failed to respond to the application or to support it, excepting Phelps), I consider that Phelp’s reasons for voting against the proposal will need to be compelling for me to determine against the applicant.

In her submission, Phelps sets out her reasons for voting against the applicant’s proposal. Firstly, Phelps states that the area proposed for the clothesline was the area approved by the local authority for rubbish bin storage. Phelps considers the current location of the bins (in the basement car parking area) to be a health risk.

No other owner is concerned at this aspect, with at least 3 (Degiovanni, Barker and Shaw) favouring the proposed location. I consider that local authorities are not particularly strict regarding bin storage areas, and that fundamentally, it is a matter for the body corporate to consider. In any event, the bins are not currently stored in this area anyway, so Phelps concern regarding local authority compliance is somewhat artificial in my view. Provided another area is available for bin storage, as it is, then location is not a reason to refuse this application.

Phelps next refers to “access to the area proposed ... is not designated for this purpose”. Phelps then goes on to outline potential problems including access being through self locking doors, persons being locked out, security risks to the building, unauthorised persons entering the building. Phelps concludes with “residents have felt safe and secure with current arrangements”.

I note that none of the other owners have mentioned these potential detriments or hazards. Perhaps they are somewhat overstated. Perhaps they can be overcome or at least offset by strategies which the body corporate might implement. Again, I am not satisfied that these aspects provide compelling reasons why the clothesline, which has clearly perceived benefits, cannot be installed.

Phelps next refers to access to the clothes line being “over very sandy soil, dirt and some grass”. She is concerned that these items will be bought into the building and will damage carpet, and “that sand and dirt will accumulate ... ”. I note an earlier statement of Phelps that there is “a public beach reserve directly opposite the front doors”. I presume that this area and other adjacent areas used by owners and occupiers of the lots also have sandy soil, dirt and some grass. This argument against the proposed clothesline is artificial, as is the next; namely that “the carpets will be further damaged by water spillage from the wet clothes or from water leaking from a clothes basket or other receptacle”. As Barker explains –

I already carry my washing down the hallway as I take it to the neighbours clothesline to dry. It is never dripping as my washer, like everybody else, finishes with a spin dry cycle. So this argument does not seem relevant.

I agree. Yes there are occasions when the spin cycle is not used (eg. Knits and items to be drip dried) but these are the exception, not the rule. For the most part, I am satisfied there will be no excess water. In limited cases where there is, then presumably people will take reasonable care not to drip water.

Phelps further states that there “will be additional damage and staining to the carpet, necessitating additional steam cleaning as well as the usual vacuuming , at additional cost ...”. I suggest that if the sand, soil, dirt and water, prove to be issues in the future for the carpet, then perhaps it is the carpet that needs to be replaced with a hard floor surface (eg tiles or the like), which could be swept / mopped easily if necessary.

Next, Phelps suggests that local authority regulations do not permit clothes lines in multi-unit complexes. This would be a very easy matter to check. I very much doubt this though, as I doubt the local authority would descend to this level of regulation. In any event, this statement however is seemingly inconsistent with Phelps next statement; namely that a clothes line was previously installed, and removed after a vote at the 1994 AGM. If clothes lines are illegal under local authority regulation, how come the earlier cloth line was erected. There is probably some explanation to clarify all these aspects. However, my view is that these arguments raised by Phelps are seemingly inconsistent, and in my view, artificial.

Phelps further that “she has concerns as to legal aspects of having a clothes line installed for the benefit of 9 lots”. Phelps refers to disputes between occupants, items being stolen, public liability concerns. Phelps concludes –

It is my opinion that the proposal by the applicant is ill-conceived and not only has it already been voted on by the body corporate and that proposal was defeated by a majority decision of all of the owners ... but the body corporate has had a clothesline once before and that clothes line had to be removed.

I do not agree that Phelps concerns are such that the proposal should be rejected. It is clear that 4 owners are in agreement with the proposal, and see benefits to the installation of a clothes line. Whilst there is some, I suggest limited, merit to some of the concerns raised by Phelps, for the most part I consider them to be artificial, and reflective of a worst case scenario point of view. In particular, I am not satisfied by any reason, or combination of reasons, raised by Phelps that the proposal is not reasonable, and should not be implemented. My basis for coming to this view is the comments I have stated throughout this Statement of Reasons.

I intend to order that the motion to install a clothesline on common property, for the benefit of all owners and occupiers, and at body corporate expense, is approved. The committee of the body corporate is hereby authorised to implement this order as if it had been a resolution approved at a general meeting of the body corporate.