Salerno On The Beach [2002] QBCCMCmr 248 (29 April 2002)

C G YOUNGREFERENCE: 0006-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	26342
Name of Scheme:	Salerno On The Beach
Address of Scheme:	939 David Low Way MARCOOLA QLD 4564

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

Mr Charles Victor Bayley, the Owner(s) of lot 29:

“To review and overrule on the resolution that was not carried at the extra ordinary meeting of the owners of “Salerno On the Beach” CTS 26342 that was held on 8 November 2001. (Adoption of New CMS-Change of Exclusive Use for Lot 29)”

I hereby order that the application is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0006-2002

“Salerno On The Beach” CTS 26342

The applicant, who is the owner of lot 29 on SP 114823, in CTS 26342, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

“To review and overrule on the resolution that was not carried at the extra ordinary meeting of the owners of “Salerno On the Beach” CTS 26342 that was held on 8 November 2001. (Adoption of New CMS-Change of Exclusive Use for Lot 29)”


An adjudicator may make an order that is just and equitable

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)).

Also section 223(3)(u) of the Act provides that an adjudicator may

if satisfied that a motion (other than a motion for reinstatement,

termination or amalgamation) considered by a general meeting

of the body corporate and requiring a resolution without dissent

was not passed because of opposition that in the circumstances is

unreasonable—make an order giving effect to the motion as

proposed, or a variation of the motion as proposed;

Motion 3 as set out in the minutes of the Extraordinary General Meeting held on 8 November 2001, was as follows, quote-

“Adoption of New CMS - Change of Exclusive Use for Lot 29:

That by resolution without dissent that the Body Corporate in accordance with section 55(2) of the Body Corporate and Community Management Act 1997 consent to the recording of a new Community Management Statement (a copy of which accompanied the meeting at which this resolution is to be proposed) for the purpose of varying and extending the exclusive use area to which By-law 20(1) refers conferring exclusive use and enjoyment of part of the common property in favour of lot 29 of the Scheme relates.

NOT CARRIED 13 FOR, 1 AGAINST ”


The applicant is seeking to exchange an exclusive use area for another area. He currently has Exclusive Use Area marked “E” (31m²) shown on Plan B annexed to the current Community Management Statement (“the current exclusive use area”).

In support of the application the applicant has advised that the interchange of the proposed exclusive use area will permit him direct access via a spiral stairway from his lot to the proposed exclusive use area being the roof garden. He does not have direct access to his current exclusive use area. He advised that:

“Currently my wife and I or my son and his family or our many friends who have used the unit very rarely have made use of the roof top terrace solely because we are required to walk around the 5^th floor internal balcony, through a door, up a set of stairs and through another door and around the 6^th floor balcony and through yet another door in order to gain access to the terrace.”

The issue which I have to consider is whether the opposition to the passing of the motion, was unreasonable in the circumstances.

Two submissions were received which expressed opposition to the motion.

The first submission by the owner of lot 31 (“the first submitter”) was as follows:

“As owner of Lot 31 and Lot G as marked on the proposed plan, I continue to refuse consent for the proposed interchange of Lot F for Lot E. My reasons are that according to the very small undetailed plan of the proposed external stairway structure it will be unsightly and diminish the views from my Lot G to the south east. I purchased my unit together with the roof garden on the basis on the current views and outlook. The erection of an external staircase can only be to my detriment and devalue my property.

I have no objection to the interchange if Mr. Bayley undertook to construct an internal staircase so that his plans did not interfere with the quiet enjoyment of my property”

I don’t consider this opposition to be unreasonable.

In response to this opposition, the applicant has submitted an amended proposal and advised that:

“The proposed stairway as shown on the plan that was attached is incorrect. It was the initial idea proposed but decided against because it would have looked unsightly (as suggested by Mr. Bignell) and also because it would not encourage any person scared of heights to use it, my wife and son being two of them. After discussions with the Builder and stairway constructor my decision is to install the spiral stairway through the southern end of the patio roof (internally). The exit from the roof will be in line (more or less) with the southern wall of Mr. Bignell’s roof terrace and the top of the handrail will be at the same height as the top of the solid concrete wall across the eastern opening. This will in no way interfere with or diminish the view from his terrace. Once again there is no intention to install an EXTERNAL stairway as indicated on the plan that was attached.”

Since the applicant has undertaken to construct an internal stairway, which will not interfere with the view from the terrace enjoyed by the first submitter, there would not appear to be continuing opposition by the first submitter.

I would have been minded to grant an order in favour of the applicant, except for the following:

The amended proposal for an internal stairway is different from that considered by the Body Corporate at the Extraordinary General Meeting held on 8 November 2001. Also there is some uncertainty about the actual area of the exclusive use that may now be required because an external stairway is no longer contemplated. It may be a reduced area. There may have been a different outcome if the amended proposal was considered by the Body Corporate at its meeting on 8 November 2001.

Having regard to the primary and secondary objects of the Act which heralds self management and community based arrangements, I would be reluctant to usurp the role, powers and duties of the Body Corporate and make a determination without giving the Body Corporate the opportunity to consider the amended proposal in the first instance.

Accordingly I propose to dismiss the application on the understanding that the applicant may resubmit a motion for consideration at a general meeting of the Body Corporate, about the exchange of the exclusive use area, which contains a revised updated detailed proposal about the actual area to be exchanged including a detailed and clear plan, and also about the improvements to be carried out for the proposed internal stairway.

The proposed stairway improvements should be considered by the Body Corporate under section 124 of the Standard Module, in general meeting, and if considered appropriate, approved by special resolution, having regard to the fact that, in my view these stairway improvements, should:

• Not obstruct the view of the owner of lot 31;

• Not detract from the overall appearance of the scheme;

• Comply with all requirements under the Integrated Planning Act 1997.

Notwithstanding the dismissal of the application, I would like to take the opportunity to comment on certain aspects of the submission by the owners of lot 16 on SP 114823 (“the second submitters”), which expressed opposition to the motion.

It was stated that the second submitters would “support a decision for the exchange only if some monetary consideration be made to the complex”. It was also stated “the applicant shall improve his capital gain by possibly $20,000.00 to $30,000.00. He shall also improve his rental power. This would be at the expense of the remaining allotment owner’s generosity.”

My views relating to this are as follows:

The exclusive use areas to be exchanged are similar in area and provided that the stairway is internal, and the view for the owner of lot 31 is not disadvantaged, then there would appear to be no detriment to other lot owners evidenced by the submissions.

Whilst it may be reasonable for the Body Corporate to seek payment for granting exclusive use of part of the common property to allow one owner a better right to use part of the common property over the other lot owners, in the current case, on the material before me, there is no better right to use the particular common property over other owners. The applicant is better off but not at the expense of other body corporate owners.

There appears to be no real intention by the second submitters to oppose the actual motion other than to seek possible financial or other betterment for the Body Corporate by withholding consent to the motion.

Because the motion proposes an exchange of common property, I would not accept, without further evidence, that this is at the expense “of the remaining allotment owner’s generosity”. I would consider opposition on this basis to be unreasonable.

My views are noted on this so that they may be considered if it is considered necessary to refer the matter again to this office.
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